Small Estate Affidavits in California: What You Need to Know

A small estate affidavit is one way to expedite the distribution of assets of a deceased person who didn’t leave a will, trust or or other estate planning document. Our firm has extensive experience in helping individuals and families develop estate planning—so there is no confusion or uncertainty about how to distribute a deceased person’s assets at the time of death. However, sometimes there is no will or other estate planning document, and in that case, California intestate law takes over. 

Without Estate Planning, California Probate Court Can Be Lengthy and Costly 

Most of the time, in the absence of a will or trust, the estate would be divided between the decedent’s spouse or other surviving family members.  California probate court would take over administration of the estate, which can be a lengthy and costly process. The court would then appoint an executor to manage and distribute the decedent’s assets, supervising the entire process and settling any disputes between family members.  

The probate court is also used as a venue for family members to dispute a will when there are claims of fraud or undue influence, etc. When an estate is tied up in probate court, the process can last anywhere from several months to several years! Further complications arise depending on the size of the estate, debts owed, and other confounding issues which muddle the process. 

As the estate becomes increasingly mired in legal complexities and disputes, legal advice is usually required and attorney fees can quickly consume much of the value of the estate, leaving little left for potential beneficiaries.

What is a Small Estate Affidavit Used For?

Fortunately, California law allows for different options to help avoid smaller estates being tied up in probate court. A small estate affidavit is used for lower value estates when someone passes away without a will.  The affidavit process for small estates is covered under California Probate Code §13100; it iis essentially a shortcut to the probate process. 

Along with the decedent’s death certificate, the affidavit can be filed in order to release assets and property to the legal beneficiaries of the estate. 

What Qualifies as a Small Estate Under California Law?

Every three years, the value of what is considered a “small estate” under California law increases. It was most recently updated in 2022 and increased from $166,250 to $184,500. Any estate with a value of this amount or less can qualify under the law and skip the probate process. Skipping probate is highly beneficial as it preserves the value of the estate without it being whittled away by court and attorney fees. 

Even if an estate doesn’t appear to be equal or less than $184,500 at first, there are often ways to legally diminish the value of the estate so that it will still qualify. For example, if there are shared assets that are already designated to a certain beneficiary, such as an annuity or pension plan, those assets will not be included in the value of the probate portion of the estate. Retirement accounts, life insurance policies and shared bank accounts are other examples of assets that may not be included under probate. 

Personal items, cars, boats, mobile homes and assets held outside of California are also not included in the estate’s values. Our expert will and trust attorneys can help you determine which assets would be excluded or need to be included in probate under California law as well as file any necessary paperwork. 

Instructions for Filing a Small Estate Affidavit

Once you’ve determined that the legal value of an estate is less than $184,500, you can begin the small estate affidavit process: 

  1. First, 40 days must have passed since the decedent’s death and there can not be any probate case opened with the courts. 
  2. If there is an official probate process in place, the estate’s executor/personal representative will need to give permission for a claim through a small estate affidavit. 
  3. Here are the necessary documents for filing: 
    • Have an attorney create a document with all the necessary code. Sometimes financial institutions may create a small estate affidavit document. 
    • A certified copy of the death certificate.
    • Proof of your identity
    • Proof of ownership of the decedent’s property
    • A description of what property is being claimed, including the monetary value. 
    • For real estate property, Form DE-160 must be filled out and signed by a probate referee.  
    • You must sign the document and have any other beneficiaries sign it as well (you must also sign any affidavit claim that they submit.)
    • Generally, the form should be notarized. 

Our Expert Will and Trust Attorneys Can Help You

Our attorneys have decades of experience in helping families with will, trust and inheritance legal issues. A small estate affidavit can be beneficial for many families, even when an estate appears much larger than the maximum. Due to the fact that a large value of property may not even qualify for probate, much of an estate’s value may be exempt. However, mistakes can be costly and time consuming, so professional advice is essential for navigating California estate laws and ensuring your family receives the maximum legal amount of a decedent’s assets.