When a person dies, often their estate, their real and personal property along with any liens or debts they may have had, goes into probate. In California, not every estate needs to go through the formal probate process.
For smaller estates, estates where the decedent’s real and personal property is below a particular dollar value, there are simplified methods available. One of these methods the decedent’s heirs may be able to use is a small estate affidavit.
Under Probate Code Section 13100, the decedent’s heirs can retrieve and collect any personal property of the decedent, so long as at least 40 days have passed from the date of death, the gross value of all of the decedent’s real and personal property is less than $184,500.00 (if decedent died on or after April 1, 2022 otherwise $166,250.00).
In addition, all persons entitled to assets join in the declaration.
Note: real property that is held as joint tenants, with one of the joint tenants surviving, or any real or personal property that was held in a living trust, is not part of a decedent’s estate, and not included in the determination of the gross value of the estate.
In order to properly and lawfully collect this personal property, the heirs must submit an affidavit under penalty of perjury, as required by Probate Code Section 13101.
Most counties have a local form to provide all required information in the format desired by the court, for example in Riverside County local form RI-PR012 “Affidavit for Collection or Transfer of Small Estate without Administration under Probate Code 13101”.
Local rules may also require a local form be used so always check with the court first.
If a local form is not available, under the code section this affidavit must include the following information:
Name of decedent
Date and place of decedent’s death
A certified copy of the decedent’s death certificate
A statement affirming that 40 days have passed from the date of the decedent’s death
A statement affirming either that (a) there is no current or former probate proceeding, or (b) that the decedent’s personal representative has consented in writing to the transfer of personal property to the person submitting the affidavit (include the representative’s letters of administration and written consent if this is the case)
A statement affirming that the current gross fair market value of decedent’s real and personal property, excluding property described in Probate Code Section 13050, does not exceed $184,500.00
A description of the personal property that is being transferred
The name of the person who will be receiving the personal property being transferred
A statement affirming that the person submitting the affidavit is either (a) a successor in interest to the decedent in the personal property or (b) a legally authorized representative (i.e. guardian, conservator, power of attorney, etc.) of the successor in interest to the personal property
A statement affirming that no other person has a superior right to claim the personal property
A request that the personal property be delivered to the person submitting the affidavit
A statement affirming under penalty of perjury that the information submitted is true and correct.
For passing real property there is an additional time and forms that are required for the real property to pass by Affidavit. It will be required to file form DE-160 “Inventory and Appraisal”.
At least 6 months must have passed since the decedent’s death rather than just 40 days in order to file for the title to the real property.
And finally, California form DE-305 “Affidavit Re Real Property of Small Value” must be filed with the court and then after it has been signed by the Clerk of the Court recorded with the County Recorder.
To learn more, contact Newport Beach Real Estate Attorneys today -- Go to NewportBeachRealEstateAttorney.com/Contact or call (800) 233-8521 for a free phone consultation.