San Diego Estate Planning Lawyer Blog
Not every estate requires a formal probate process. Most states, including California, have simplified procedures for administering “small” estates. The actual definition of a small estate varies from state to state. California law defines a small estate as one where the real and personal property owned by the deceased, valued as of the date of death, does not exceed $150,000. Some types of property are excluded from this $150,000 threshold, including unpaid salary or benefits owed the deceased (up to $15,000) and many types of vehicles.
In a regular estate, a probate court must appoint a personal representative or executor to gather the decedent’s assets and distribute them to the appropriate heirs or beneficiaries. In a small estate, by contrast, the person entitled to receive those assets may simply file an affidavit with the court acknowledging the transfer of ownership. There are separate processes for collecting personal and real property.
If the Small Estate Includes Only Personal Property
If the small estate has no real property (i.e., a house), the person filing the affidavit must wait at least 40 days from the date of the decedent’s death. After that, he or she may file the affidavit, which must identify all personal property owned by the decedent as well as the “successors” entitled to receive that property.
Who is a “successor”? That depends on whether or not the deceased person left a valid last will and testament. If there is a will, the successors are the persons named as beneficiaries. This might include a living trust made by the decedent during his or her lifetime. Normally, a small estate will only have a handful of successors. For example, if you make a will leaving your entire your estate to your spouse, then he or she is the sole successor who should file the small estate affidavit.
If the deceased did not leave a will, then any successors are determined by the intestacy law of the state or country where the personal property is located. In most California small estates, that means California intestacy law. Keep in mind California, unlike most states, recognizes marital as well as separate property.
For personal property, like a bank account, a small estate affidavit is generally sufficient to authorize a transfer from the deceased to the successor. The affidavit must be notarized and delivered to the person holding the property. If the holder refuses to transfer the property, or requires additional proof of the claim, the successor may need to seek a court order.
If the Small Estate Includes Real Property
A successor may still use a small estate affidavit if the deceased owned real estate as well as personal property; however, it will still require a petition to the Probate Court. California law does require a formal appraisal of any real property, however, to determine its market value. The state appoints special officials known as probate referees to appraise property in each county. The referee prepares an appraisal that the successor must then file together with the affidavit.
There may still be cases where a small estate requires a formal probate. And even if you expect to leave a small estate, that is not an excuse to avoid making a will or trust. Estate planning is for everyone. If you require assistance, contact the Law Office of Scott C. Soady in San Diego today.