A California small estate affidavit is a legal tool that can be used by an individual to collect real and personal property after someone dies if their estate is small enough to qualify. There are three (3) different procedures for collecting property in this manner, all of which will help the individual (called a “successor”) avoid the lengthy and costly probate process.
One of the processes applies only to collecting personal property, the second applies only to real property, and the last one can be used for both. In all cases, the successor will complete the appropriate court form, have the property appraised by a probate referee, and file both forms with the court, along with any other necessary documents, with the court.
- Statute: PROB Division 8, Part 1
- Maximum estate value (PROB 13100, 13151, & 13200(h)): $166,250 for personal property or both personal and real property; $55,425 for real property only. (The property mentioned in PROB 13050 is excluded from valuation.)
- Mandatory waiting period (PROB 13100 & 13200(a)): Forty (40) days for personal property affidavit and petition for real and personal property; six (6) months for real property affidavit.
- Where to file: Superior Court of California in the county where the decedent resided (or county where property is located). The personal property affidavit does not need to be filed.
How to File (5 Steps)
- Step 1 – Determine Procedure
- Step 2 – Requirements
- Step 3 – Complete Forms
- Step 4 – Court Hearing (If Applicable)
- Step 5 – Collect Property
Depending on the type of property being claimed and the size of the estate, a successor (as defined by PROB 6401 and 6402) will be able to collect property that was left by a decedent without having to go through a long probate process. The following three (3) forms can be used to collect property from a small estate:
- Personal property only ($166,250 or less) – Affidavit for Collection of Personal Property
- Real property only ($55,425 or less) – Affidavit Re Real Property of Small Value (Form DE-305)
- Real and personal property ($166,250 or less) – Petition to Determine Succession to Real Property (and Personal Property) (Form DE-310)
In addition to the abovementioned maximum estate value mentioned, the following requirements must be met in order to distribute a small estate out of probate:
- Forty (40) days have passed since the death of the decedent (or six (6) months if filing an Affidavit Re Real Property of Small Value).
- No proceeding for administration of the estate has or will take place (or the personal representative appointed to oversee the administration of the estate has provided written consent).
- No other person has a superior right to the property being claimed.
- Last illness expenses, funeral expenses, and unsecured debts must have been paid (applicable only to Affidavit Re Real Property of Small Value).
Once it is determined that the successor can use the small estate distribution process, they must fill out the appropriate affidavit or petition and have it notarized (only applicable to the affidavits). Both the Affidavit Re Real Property of Small Value and Petition to Determine Succession to Real Property (and Personal Property) must be filed with the Superior Court of California in the county where the decedent resided. However, an Affidavit for Collection of Personal Property does not need to be filed. The following documents must also be completed and attached to the form, regardless of which affidavit/petition was used:
- Inventory and Appraisal (Form DE-160)
- Inventory and Appraisal Attachment (Form DE-161)
- A copy of the death certificate
- Written consent from the personal representative of the estate (only applicable if court proceedings for the administration of the estate have already commenced).
This step only applies to successors claiming real and personal property with a Petition to Determine Succession to Real Property (and Personal Property). After all the appropriate documents have been filed, the court clerk will set a hearing date. The Notice of Hearing – Decedent’s Estate or Trust form must be completed and delivered to all heirs mentioned in the petition at least fifteen (15) days before the hearing. If the judge approves the petition at the court hearing, they will furnish an Order Determining Succession to Real Property (Form DE-315) so the successor can claim the property.
Once the affidavits have been properly completed and notarized (or, if using the real and personal property petition, the Order Determining Succession to Real Property has been issued by the court), the successor can claim the property from the holder by presenting all the forms and providing proof of identity.