How to Probate a Small Estate in California
Options for Small Estates in California
California offers options for simplified probate procedures, depending on the value and complexity of the estate. These include the Small Estate Affidavit process and the Simplified Probate Procedures.
Small Estate Affidavit
For estates valued at $166,250 or less (as of 2021), California law provides a "small estate" procedure where you can transfer most property to inheritors without going to court. The process involves:
- Wait 40 days after the death of the estate owner.
- Prepare a small estate affidavit, detailing the property to be transferred, affirming that the estate falls under the small estate limit, and that the person filing the affidavit is entitled to receive the property.
- Sign the affidavit under oath and notarize it.
- Present the affidavit to the person, bank, or company that has the property now.
This process allows you to avoid court involvement, legal fees, and the long timeline that can come with standard probate procedures. This procedure is outlined in the California Probate Code §13100-13116.
Simplified Probate Procedures
California also provides a quicker process for probate, known as the “simplified” or “summary” probate procedure, for certain estates. If the gross value of the decedent's real and personal property in California does not exceed $166,250, a simplified process can be utilized. Here are the steps:
- A Petition to Determine Succession to Real Property (and Personal Property) is filed.
- If the petition is uncontested and approved by the court, an order is signed by the judge.
- The order is then certified by the court clerk.
- The certified order is recorded in the county where the real property is located. After recording, the person named in the order is the owner of the real property.
This procedure allows the estate to bypass the traditional probate process, which typically involves multiple court hearings, numerous filings with the court, and potential delays due to backlog in the court system. This is governed by the California Probate Code §13150-13158.
Small Estate Limits for California
In California, there is an Affidavit procedure available as long as the personal property does not exceed $184,000. There's a 40-day waiting period. Cal. Prob. Code 13050.
There's also an Affidavit procedure that you can use if you have real property worth less than $50,000 (of which there is not much in the Golden State); there's a six month waiting period for this. Cal. Prob. Code 13200 and following.
You can also use an Affidavit to collect up to $15,000 of salary and other compensation (including unused vacation time) owed to the deceased spouse. Cal. Prob. Code 13600.
There's also a summary probate procedure that's available for estates worth less than $150,000. This dollar value doesn't count real property outside of California, property that passes by joint tenancy, property left outright to a surviving spouse, life insurance or other assets that pass by beneficiary designation, and property held in living trusts. Cal. Prob. Code 13150 and following.
What's Included in valuing the estate?
Not everything a person owns is part of their "Estate" for probate purposes.
If you're wrapping up the estate of a California resident who died with an estate that's worth less than a certain dollar amount, you won't have to go through a formal probate court proceeding.
It doesn't matter whether or not the deceased person left a will; what matters is the value of the assets left behind. If the estate's value is under the "small estates" limit in California, you can take advantage of a simplified probate procedure, often called a "summary probate." Instead of having a court hearing in front of a judge, you may need only to file a simple form or two and wait for a certain amount of time before distributing the assets.
In some states, it can be even easier: Inheritors can use a simple affidavit to claim assets. (An affidavit is a statement you sign in front of a notary, swearing something is true.) If you live in one of those states, you just have to wait a required period of time, then sign a simple, sworn statement that no probate proceeding is happening in your state and that you are the person entitled to inherit a particular asset--a bank account, for example.
Adding it up, what's in, what's not
When you are trying to determine whether or not an estate's value is below the California small estates limit, the first thing to do is make a list of the assets. A simple spreadsheet or list will do.
Not everything a person owns counts, though.
Include only the things that pass to heirs and beneficiaries by will or, if there's no will, by California intestacy laws, which determine who inherits if there is no will.