Small Estate Affidavit

According to California Probate Code Sections 13100-13116, if the decedent passes away with their estate valued at less than $166,250, which includes real and personal property (but excludes certain property), a formal probate proceeding may not need to be opened. If the decedent owned real property, or if there was a lien on their real property, an Inventory and Appraisal will need to be attached to the Small Estate Affidavit, and often a court order will be required to sell the real property.

The person who is entitled to receive the “small estate” must complete an affidavit or declaration (see below). The declaration must state that at least forty days have passed since the decedent’s date of death and the signee does have the right to the property.  In addition, the signee needs to declare under penalty of perjury that they are either beneficiaries under the decedent’s Will, trustee of the decedent’s living trust, or heir of the decedent who died intestate (such as a spouse, child, or parent). Also, a certified copy of the decedent’s death certificate needs to be attached to the affidavit.

After all the necessary information is declared, documents attached, and the signor’s signature is notarized, the Declaration or Affidavit is given to the bank or other “holders” of the decedent’s property so it can be released and/or distributed to the signor.

For more information on retaining our probate attorney for your loved one’s small estate call Sacramento Law Group at (916) 299-9913.

EXAMPLE OF SMALL ESTATE AFFIDAVIT

(for collection of personal property):

The title: Declaration for Collection of Personal Property of Decedent Not Exceeding
$166,250 in Value {Probate Code Sections 13100-13101}

The body of the declaration must include the following statements:

• The decedent’s name;
• The date and place of the decedent’s death;
• “At least 40 days have elapsed since the death of the decedent, as shown in a certified copy of the decedent’s death certificate attached to this affidavit or declaration”;
• Either of the following (as applicable):
  • “No proceeding is now being or has been conducted in California for administration of the decedent’s estate.” and/or
  • “The decedent’s personal representative has consented in writing to the payment, transfer, or delivery to the affiant or declarant of the property described in the affidavit or declaration.”
• “The current gross fair market value of the decedent’s real and personal property in California, excluding the property described in 13050 of the California Probate Code, does not exceed $150,000”’
• “A description of the property of the decedent that is to be paid, transferred or delivered to the
  affiant or declarant is as follows”: (Include property description)’
• The name of the successor of the decedent (as defined in Section 13006 of the California Probate Code to the described property’
• Either of the following (as applicable):
  • “The affiant or declarant is the successor of the decedent (as defined in Section 13006 of the California Probate Code) to the decedent’s interest in the described property” and/or
  • “The affiant or declarant is authorized under Section 13051 of the California Probate Code to act on behalf of the successor of the decedent (as defined in Section 13006 of the California Probate Code) with respect to the decedent’s interest in the described property.”;
• “No other person has a superior right to the interest of the decedent in the described property.”;
• “The affiant or declarant requests that the described property be paid, delivered or transferred to the affiant or declarant.”;
• “The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”

The affiant or declarant will then sign, date and have the affidavit notarized.