Don’t want to go through Probate? Try the Small Estate Affidavit

QUESTION: The last thing I want to do is go through Probate. Can you let me know if there are any other options?
Answer: It is possible. There is what is known as a Small Affidavit of Estate. Generally, small estate transfers  can be made if there is a probate or a Trust or if there was no probate or Trust.
Question: What is the procedure to do this?
Answer: Informal transfer through this Small Estate Affidavit is faster than formal probate for small estate transfers . Personal property can be transferred on or after the 41st day after death. Transfer real property interests can be transferred on the 41st day after death if you obtain a court order or six months after death, by an affidavit procedure available if real property in the estate has a gross value of $50,000 or less. The reality in California is that it is unlikely the gross value of any real property will have a value of this little. However, the Small Estate Affidavit will certainly work for personal property transfers.
Question: Is  it better to do this  than Probate?
Answer: Informal transfer is simpler and less expensive than formal probate because many times an attorney will not be needed to do the Small Estate Affidavit, and if one is needed, it is much less expensive than representation in a Probate.   Additionally, court appearances should not be necessary.
Question:  What actually qualifies as a ‘small estate’?
Answer:  First, the current gross fair market value of the decedent’s real and personal property in California, excluding the property described in section 13050 of the California Probate Code, does not exceed one hundred fifty thousand dollars ($150,000). Thus, it is important to know what is listed in section 13050. The items included in this section of the Probate Code include:   Any property or interest or lien thereon which, at the time of the decedent’s death, was held by the decedent as a joint tenant, or in which the decedent had a life or other interest terminable upon the decedent’s death, or which was held by the decedent and passed to the decedent’s surviving spouse (without a Will), shall be excluded in determining the property or estate of the decedent or its value. Additionally,  this  excluded property shall include, but not be limited to, property in a trust revocable by the decedent during his or her lifetime.
Thus, the actual amount of the Estate can be much larger than $150,000 as long as the property is moved into a Trust and that Trust is revocable.
Additionally, you must give the property description as follows:  Describe property of decedent to be paid, transferred, or delivered to affiant or declarant: (1)   You can list in one declaration all items of property to be transferred; but (2)   Because each transaction is separate, it is usually preferable to prepare a separate affidavit or declaration for each specific item of property.
If the particular item of property being transferred is an obligation secured by a lien on real property, the affidavit or declaration must: (1)   Include the recording reference to the instrument creating the lien; and (2)   Contain a notary public’s certificate of acknowledgment. You must identify each person executing the affidavit or declaration as well as set forth the name and right of each of decedent’s successors to the described property.
If decedent died leaving a will, set forth: That there was a will; Name(s) and status of the sole beneficiary (or all beneficiaries) who take(s) a particular piece of property under decedent’s will; and the name and capacity of trustee of a trust created during decedent’s lifetime, if the will gives property to that trust.If decedent died without leaving a will, set forth that successor(s) take(s) the property through intestate succession; and the name(s) of the sole person (or all the persons) who take(s) the property through intestate succession, and (for multiple persons) identify the share to which each person is entitled.

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Brian D. Lerner is an Immigration and Naturalization Attorney. He is a Certified Specialist in Immigration and Nationality Law as Certified by the State Bar of California, Board of Legal Specialization. Mr. Lerner is married to a Filipina and has been helping Filipinos immigrate to the United States for nearly 20 years. His firm represents clients in Deportation/Removal proceedings, does Waivers, Appeals, Naturalization, Adjustments, Criminal Relief, Citizenship, Consulate Processing, Work Permits, Investment Visas and all other areas of Immigration and Naturalization Law. You can go online to http://www.californiaimmigration.us/ and get a free consultation or call us at (562) 495-0554 for an in-person office consultation.