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Biddle Law Estate Planning Blog

Thursday, July 27, 2017

Small Estate Probate in California

Small estates do not need to be probated in California. That means that if you can decrease the total value of your property to under $150,000, you can avoid probate in California altogether.

This process is often referred to as “Summary Probate.” The executor of the estate simply has to file an affidavit or declaration 40 days after the date of death has passed. This document will be used to collect the assets of the estate for distribution. The court is not involved, and no documents need to be filed. That means that the entire formal probate process can be circumvented, and the estate may be administered much faster and more efficiently.

The Small Estate Affidavit

California law sets out exactly what information should be included in a small estate affidavit, and your attorney can help you draft this document. Some financial institutions will also require that you fill out specific forms for their internal use to transfer assets as well. Usually, a certified copy of the death certificate should also accompany this form. Additional documentation may be requested as well.

When the estate includes real property, you should also have an appraisal and inventory attached to your affidavit. Generally, a referee who is appointed by the California State Controller’s Office will provide this assessment service on your behalf.

Property that Counts Toward the Monetary Limit

The total value of the all of the assets of the estate must be equal to or less than $150,000. The assets that are included in this calculation include anything and everything that would have been administered through the estate, such as:

  • Bank accounts
  • Stocks
  • Bonds
  • Mutual funds
  • Real property (valued at up to $50,000)
  • Brokerage accounts

Like all estates, it does not include things like trust assets or any other asset that has a separate beneficiary, such as life insurance benefits or 401(k) accounts.

The value of the property at issue is determined as of the date of the death, even if the required affidavit is provided months or even years down the road.

When Should Small Estate Proceedings Be Used?

You cannot use the small estate laws if administrative proceedings are pending regarding the estate. However, this simplified process can still be used if the personal representative agrees in writing to take advantage of the small estate procedures.

Using small estate procedures is always optional, but it has significant benefits. Nonetheless, you may want to go through the full probate process in certain circumstances. For example, you may not want to use the summary procedures if the estate has large amounts of debt. The California Probate Code provides certain advantages to estates by indicating which creditors should be paid and how much. You will not be able to make use of those types of benefits if the estate does not go through the full probate administration process.

If you are considering using the small probate procedures in California, it is a good idea to talk to an attorney about your options first. You want to make certain that you are using the right procedure for your situation. Contact Biddle Law by calling 650-560-7655 in San Mateo or 650-727-6276 in Belmont.


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