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What Is A Small Estate Affidavit?

Posted by Jim Filippi | Nov 15, 2020 | 0 Comments

If you have been a reader of our blog for any period of time, you have likely learned that you want to take the steps necessary to avoid probate (see https://www.filippilaw.com/why-avoid-probate).  Not just for the excessive cost and time it takes to proceed through that process, but because of the hassle it causes your family (see https://www.filippilaw.com/what-is-probate).  However, you may be surprised to learn there are some little-known situations when your estate won't need to go through this probate process. 

First, we must mention that the best solution, and one we often suggest to our clients, is to have a revocable living trust created.  If done and maintained properly, this all but guarantees your estate will avoid probate. 

Absent you putting a revocable living trust in place, there are still a couple situations when probate may not be necessary. The most obvious being that if your estate does not have any descendible assets (property able to be inherited) for your heirs.  This can happen if you have done extensive estate planning, or if you have simply lived your best life during retirement and enjoyed every cent you saved.

There is also another time when probate may not be necessary.  California has a little-known law which allows for the passing of estate assets without the supervision of the court in the probate process.  California Probate Code Section 13100 allows for assets in an estate to transfer through the drafting and executing of a small estate affidavit.  However, only some estates will qualify.

The most significant qualification to proceed under a small estate affidavit is that the total assets in the estate do not exceed $166,250.  This amount is modified by the California Judicial Council every three years in proportion to fluctuations in the Consumer Price Index (CPI), an economic reading that identifies the rate of inflation in our economy. 

The next question that needs to be answered is what is included in the sum of a person's estate.  California Probate Code Section 13050(a)(1) answers this question for us.  It excludes property that was held in joint tenancy with another, was terminable at death, passed to a surviving spouse under certain circumstances or was held in a revocable living trust.  If you don't know what any of this means, it's okay, just give us a call and we can help!  

So, if you have followed our advice, and have most of your assets in a revocable living trust, but forget to place a particular asset in the trust, a small estate affidavit is one potential solution to correcting this mistake.  That is of course, as long as the total assets left out of the trust are less than $166,250 (or the subsequently adjusted amount) and all the other requirements of the small estate affidavit process are satisfied.

Some of those other qualifications include a requirement that the death have occurred at least 40 days prior, no probate proceeding has been or is being conducted, and of course, that the affiant (the person signing the affidavit) is the proper person to receive the property. 

There are other requirements, including having proper identification, and attaching a certified copy of the death certificate, but the biggest concern is ensuring you are properly proceeding under this small estate affidavit statute.  By signing the affidavit, you are subjecting yourself to personal liability.

It is for this reason that we suggest you consult with a licensed probate attorney to assist you with this small estate affidavit process.  While you can always go it alone, the nominal fee you pay to a probate attorney will be a small price for the peace of mind in knowing it was done properly and your risk of liability is reduced.   

We can assist you with the small estate affidavit process, so give us a call today and let us take that stress off your shoulders.

About the Author

Jim Filippi

Jim Filippi, Esq. Principal Attorney Attorney Jim Filippi is the founder and principal attorney for the Filippi Law Firm.  He is a native of Northern California where he was born and raised. Jim has an extensive educational background, graduating with the following degrees: Juris Doctor (JD...

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