In certain circumstances, a decedent’s personal property may be transferred to the “successors” of the decedent without the need to open a probate with the probate court. The decedent’s entire estate must qualify as a small estate and must meet all of the requirements of sections 13100-13115 of the California Probate Code. The decedent’s successors may make their claims to the property and take title (assuming no conflicting claims) by presenting an affidavit which meets certain requirements to the holders of the property.
Title to real property may not be transferred under this procedure.
No Probate Proceeding or personal representative consents: The affidavit procedure may be used only if (a) no probate proceeding is currently pending or has taken place for the estate in California; or (b) the decedent’s personal representative consents in writing to transfer of the property pursuant to the affidavit procedure.
40-day Wait: The affidavit procedure may not be used until at least 40 days have elapsed since the date of the decedent’s death.
Estate may not exceed $100,000 in value: Personal property qualifies for the affidavit procedure only if the total current gross fair market value of the decedent’s real and personal property in California does not exceed $100,000.
- Title to real property in the estate may not be cleared using the affidavit procedure. The affidavit procedure is limited to the transfer of the decedent’s personal property only. Nevertheless, both the decedent’s real and personal property in California must be considered in determining whether the total value of the estate exceeds $100,000.
- Insurance policy or retirement plan proceeds payable to the estate as the designated beneficiary must be included in determining whether the total value of the estate exceeds $100,000.
- The following property is excluded in determining whether the total value of the estate exceeds $100,000:
- Vehicles and other state-registered property: automobiles, “nonmotor” vehicles such as trailers, mobilehomes, manufactured homes, commercial coaches, truck campers, floating homes and undocumented vessels;
- Unpaid salary: any amounts due to the decedent for services in the armed forces and up to $5,000 in unpaid salary or other compensation (including compensation for unused vacation) owing to the decedent for personal services from any employment;
- Joint tenancy interests, life estates, and property passing outright to surviving spouse: all property held by the decedent in joint tenancy, or in which the decedent had a life estate or other interest which terminated at death, or that passes outright to the decedent’s surviving spouse under Probate Code section 13500;
- Multiple-party accounts: any multiple-party account to which the decedent was a party at death to the extent the funds pass directly to a surviving party, payable-on-death payee or beneficiary; and
- Inter vivos trust assets: all property held in a living trust.