CALIFORNIA SMALL ESTATE PROCEDURES
Depending upon the size and composition of the estate and the marital status of the decedent, different methods exist in California for the summary passing of title to estate property to the decedent’s successors or surviving spouse and children without administration.
SUMMARYIn addition to methods of transferring property without probate that apply only to a surviving spouse, registered domestic partner, minor child, or other dependent (see below) there are three distinct procedures, often referred to as "transfers under California small estate statutes," for collecting a decedent's assets without a formal probate proceeding as follows: 1. Collection of personal property in small estates by affidavit or declaration under Prob C Sections 13100-13116. See explanation below under "PERSONAL PROPERTY." 2. Succession to real property within California by one of the following two methods (see detailed explanation below) depending on the gross value of all California real property in the estate. See explanation below under "REAL PROPERTY. a. If the real property's gross fair market value does not exceed $50,000 (regardless of the total value of the estate), one can use the affidavit procedure of Prob C Sections 13200-13210 (Prob C Section 13200(a)(5)); b. If the gross fair market value of the real property is more than $50,000 and the gross value of the total estate, real and personal, does not exceed $150,000, less excluded property, a summary court proceeding (Prob C Sections 13150-13158 (Prob C Section 13151)) can be used to determine the succession to real property and additional personal property.
PERSONAL PROPERTYA very common non-probate transfer is the use of affidavits to transfer personal property if the gross value of the decedent's real and personal property in California does not exceed one hundred fifty thousand dollars ($150,000) and if 40 days have elapsed since the death of the decedent, the successor of the decedent may, without procuring letters of administration or awaiting probate of the will. This is a cumulative $150,000 of qualifying assets even if at different financial institutions. The valuation date is not the date of death but rather the date of the affidavit signing. This only works for personal property and does not work for real estate. Also, a Prob C Section 13100 declaration can often be used to get the items out of a safe deposit box. There is no appraisal required. Also, no bond is required. There is no publication. The Court does not issue Letters. In fact, Prob C Section 13100 generally has absolutely no Court involvement whatsoever and is not filed in Court, unless someone commits fraud or in some other rare situations. It is simply a signed affidavit, under the penalty of perjury, declaring a number of items required by the probate code. Some financial institutions have their own small estate forms which they may ask you to use.
REAL PROPERTYThere are two separate summary administration procedures that a decedent's successor in interest (as defined in Prob C Section 13006) may use to transfer a decedent's interest in California real property, depending on the value of the property: 1. Prob C Section 13150 Petition Procedure. A petition under Prob C Sections 13150-13158 is the most commonly used procedure for transferring a decedent's interest in real property or real and personal property in California with a gross value not exceeding $150,000 as of the date of death. If the basis for petitioner's claim is the decedent's will, a copy of the will must be attached to the petition. Prob C Section 13152(c). A completed Inventory and Appraisal (Judicial Council Forms DE-160, DE-161) must be attached to the petition, verifying the value of the property. Prob C Section 13152(a)(2), (b). The petitioner may select any currently appointed probate referee located in the county where the property is situated. Prob C Section 13152(b). The petition requesting a court order may be filed on the 41st day after decedent's death (Prob C Section 13151) rather than after 6 months when using the Prob C Section 13200 affidavit procedure (Prob C Section 13200(a)) (see paragraph 2. below). If California probate proceedings for administration of the decedent's estate are pending or have been conducted, the petition cannot be filed without the personal representative's written consent. Prob C Section 13152(a)(5), (d). See Prob C Section 13150. The person who receives the property under the court order is personally liable for the unsecured debts of the decedent. 2. Affidavit Under Prob C Sections 13200-13210 For Transfer of Real Property. An affidavit procedure is available under Prob C Sections 13200-13210 for transfer of real property when the gross value of all of decedent's real property in California does not exceed $50,000, regardless of the total value of the estate (Prob C Section 13200(a)(5). If the gross value of all of the decedent's real property located in California does not exceed $50,000, an affidavit to transfer the real property can be filed with the probate court under Prob C Sections 13200-13210. The value must be shown by an inventory and appraisal by a probate referee. Prob C Section 13200(a)(5).
SURVIVING SPOUSE1. "Set-Aside Petition" under Prob C Sections 6600-6615; Fam C Section 297.5(c). The Set-Aside Petition can be used if the net value of decedent's estate does not exceed $20,000 at the date of death, including all real and personal property, but excluding all non-probate property, liens, and other encumbrances (such as a mortgage on a house), that would reduce the net value of the estate. Prob C Sections 6600-6615; Fam C Section 297.5(c). The Set-Aside Petition allows for a simplified procedure, instead of a full probate, if the following requirements are met: a. Only the surviving spouse (or domestic partner) or the decedent's minor children can request that the estate be "set aside" under this procedure. b. The petition can only be filed by the executor in the will, if there is one, the surviving spouse, a guardian of a minor child, the personal representative, or a child of the decedent who has since become of legal age to do so.