When someone passes away, the assets can be transferred to the decedent’s successors or spouse using various methods. During the transfer, the process of probate should be avoided where possible, as it can be expensive and time-consuming.
One of the ways this can be done in California is through a small estate affidavit prepared by an Estate Attorney.
However, a small estate affidavit can only be used to transfer property valued at $166,250. Most of the assets are included and counted towards this limit, even if they are in different financial institutions.
If the assets exceed $166,250 then they must go through probate or be transferred using another type of legal document.
What Is a Small Estate Affidavit?
A small estate affidavit is a type of legal document that allows property in a will to be transferred easily as it avoids the probate process.
The probate process is usually a hassle, expensive, and time-consuming for the beneficiaries. So, avoiding it is a big benefit. If the personal property that is being transferred is valued under $166,250 then a Small estate Affidavit is commonly used for quick and easy transfer.
It's a fast process because there is no bond, publication, appraisal or probate required. With a small estate affidavit, there is no court involvement at all, unless the assets exceed the limit.
On a small estate affidavit are usually listed:
- The parties involved
- The property to be transferred
- Anything else that plays a role
Small Estate Affidavit In California
In California, a 13100 declaration is commonly used for small estate affidavit's, and to avoid the probate process.
This type of declaration has no court involvement and is also not filed there unless there are very rare circumstances like fraud.
As a 13100 declaration is only a signed affidavit, it's not uncommon that people use this for fraud. This is also why you must work with a good attorney to ensure that you don't commit fraud accidentally.
For a 13100 declaration to be possible in California, it must provide:
- That the value of assets is $166,250 or less
- That at least 40 days have passed since death
- Description of the property
- Names of successor(s)
- No other person has a superior right
- The death certificate
Things To Know About a Small Estate Affidavit
Unlike with some other legal documents the holder of the property is not liable for paying the money out. This means the financial institutions will usually pay the money out, which can often be more pleasant for the parties involved.
In California, a small estate affidavit comes with treble protection against fraud. So, if someone were to wrongfully take $25,000, a lawsuit against that person could recover $75,000.
Despite this law, it's still not uncommon for a Small Estate Affidavit to be used for fraud.
Also, the process of a small estate affidavit varies from one institution to another. Some will require a W-9 that shows the recipient's social security number for tax purposes. You can avoid any delays by supplying the affidavit of domiciles and the W-9 form with the small estate affidavit form.
Additionally, you must also ensure that the assets do not exceed the value of $166,250 as mentioned at the beginning of this article.
However, some assets do not count towards this figure.
The following assets are not considered:
- POD account
- Money from service in armed forces
- Vehicles
- Property in trust
- Up to $5,000 in salary
- Joint Tenancy
