California probate law provides spouses and beneficiaries the option of administering an estate outside the formal probate process. Surviving beneficiaries are able to transfer personal and real property using simplified probate procedures such as completing a simple affidavit. Read on to learn more about the California small estate probate process for estates valued under $166,250 (effective 1/1/2020).
Small Estate Probate Process and Probate Shortcuts
California law does not require an estate to be probated through the formal process if it is less than $166,250. The successor of the decedent can use a simplified procedure pursuant to California Probate Code Section 13100 to transfer personal property within an estate to beneficiaries as follows:
Excluding the property described in Section 13050, if the gross value of the decedent’s real and personal property in this state does not exceed $166,250 (effective1/1/2020) 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, do any of the following with respect to one or more particular items of property:
(a) Collect any particular item of property that is money due the decedent.
(b) Receive any particular item of property that is tangible personal property of the decedent.
(c) Have any particular item of property that is evidence of a debt, obligation, interest, right, security, or chose in action belonging to the decedent transferred, whether or not secured by a lien on real property.
California Affidavit of Collection of Estate Assets
The decedent’s successor will have to file a formal affidavit/declaration that complies with the above-referenced code section in order to legally transfer personal property. If the decedent’s successor seeks to transfer real property that is valued at less than $55,425, he/she will have to do the following pursuant to California Probate Code section 13200:
No sooner than six months from the death of a decedent, a person or persons claiming as successor of the decedent to a particular item of property that is real property may file in the superior court in the county in which the decedent was living at the time of death, or if the decedent was not living in this state at the time of death, then in any county in which real property of the decedent is located, an affidavit in the form prescribed by the Judicial Council pursuant to Section 1001.
Probate Affidavit to Transfer Real Property Under $55,425
The successor will have to complete Form DE-305 (Affidavit for Real Property of Small Value $55,425 or less) and all interested parties will have to sign. This is an increase from the previous statutory amount effective 1/1/2020. The form is self-explanatory for the most part. The document preparer must include a completed inventory and appraisal document in addition to attaching a copy of the decedent’s death certificate to be filed with the local clerk of the court. Upon review and approval of the documentation, the successor will receive a certified copy of the form. This certified copy must be filed with the recorder’s office where the real property is located to complete the transfer.
Simplified Small Estate Probate To Transfer Real Property Under $166,250
The successor in interest can also file a petition under California Probate Code sections 13150-13158 to obtain a court order granting the transfer of real property:
Exclusive of the property described in Section 13050, if a decedent dies leaving real property in this state and the gross value of the decedent’s real and personal property in this state does not exceed one hundred fifty thousand dollars ($166,250) and 40 days have elapsed since the death of the decedent, the successor or successors of the decedent to an interest in a particular item of property that is real property, without procuring letters of administration or awaiting the probate of the will, may file a petition in the superior court of the county in which the estate of the decedent may be administered requesting a court order determining that the petitioner has succeeded to that real property. A petition under this chapter may include an additional request that the court make an order determining that the petitioner has succeeded to personal property described in the petition.
Both of the above procedures for transferring personal and real property do not require a bond to be posted nor publication. In addition, there is little to no court involvement. For example, successors in interest do not have to wait for letters to be issued to transfer property. All pending estate debts must still be paid in full.
Spousal Property Petition
The decedent’s surviving spouse can request for property to be transferred to him/her without going through the formal probate process. The surviving spouse will need to complete and file the Spousal/Domestic Partner Property Petition.
Non-Probate Assets Definition
Not all assets need to be probated. Non-probate assets are assets which the decedent has already transferred title to during their lifetime. They also include assets that have in place some type of survivorship transfer mechanism, such as a pay on death clause. These types of assets are not probated and are distributed outside the scope of any terms that may be identified in decedent’s will. in probate court.
Will substitutes are also considered non-probate assets. With these type of assets, although the death beneficiary only receives the asset upon the death of the donor, the title of the asset transfers to the death beneficiary during the life of the doner. On the contrary, assets transferred through a will are not title transferred to the beneficiary before death of the donor. With assets transferred through a will substitute process, the assets avoid having to be probated.
Contact A People’s Choice
Contact A People’s Choice for more information about the California probate process for small estates. Call 1-800-747-2780 to speak to a registered legal document assistant.