What Is A Small Estate Affidavit?

Attorney Image By: James Filippi

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. 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://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 of 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 that 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 has 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.

Satisfied Client Stories

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Anyone in need of a great law firm that does Living Trust/ Wills I highly recommend Filippi Law Firm in Rocklin.
My husband and I needed to have a new Trust done and we were very pleased with

Suzan Henshillwood
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I highly recommend Filippi law firm. Can’t say enough how much I appreciate all they did for me and my living trust. Jim is very helpful and relieved any doubts I had about trust. Very nice law firm and friendly. Thank you Jim for everything and Courtney as well.

Suzan Perfetto
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Very Professional service provided. Handled my trust with professional care and left us feeling very confident. Would recommend Filippi Law Firm to all my friends

Bret Rapozo
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Jim is a personable individual and all the people in the firm are friendly and professional. Creating my trust was painless and has taken a load off my mind.

Jil Voorhies
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We had an outstanding experience with all the Filippi associates we worked with. They were exceptionally professional and friendly. I would highly recommend their services.

John Wendt
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The Filippi Law Firm is very family oriented, professional in every way and quickly responded to any questions my family had. Their end product left nothing to be desired as it was an extremely well thought of and produced legal document. I highly recommend the firm to perform in any capacity of estate planning or administrative law.

Geraldine Dolan

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