How to file a small estate affidavit in California

California's small estate affidavit procedure provides an easy way to inherit property. Find out if your loved one's estate qualifies and what steps you need to take.

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by Brette Sember, J.D.

Brette is a former attorney and has been a writer and editor for more than 25 years. She is the author of more than 4.

Contents

Updated on: January 31, 2023 · 3 min read

• Estate qualification
• Your qualification
• California small estate affidavit instructions

Probating a will can be both a time-consuming and an expensive process. These are two reasons that the California Probate Code 13050 has created a procedure that allows a beneficiary to inherit a small estate without jumping through all the hoops of a formal probate proceeding. Preparing a small estate affidavit in California is simple and fast.

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Estate qualification

Because this process is only for small estates, the total estate must be worth $150,000 or less. This process is not to be used for transferring title to real property (such as a home), although the value of real and personal property of the deceased is included in the calculation. To determine if your loved one's estate qualifies, you need to total all the property they owned and add in any life insurance or retirement benefits that are paid to the estate (not those that are payable to another person).

As stated by the California Judicial Branch, you do not include the following items in your total:

• Cars, boats, or mobile homes
• Real property outside of the state of California
• Property held in trust, including a living trust
• Real or personal property that the person who died owned with someone else (joint tenancy)
• Property (community, quasi-community, or separate) that passed directly to the surviving spouse or domestic partner
• Life insurance, death benefits, or other assets not subject to probate that pass directly to the beneficiaries
• Unpaid salary or other compensation up to $5,000 owed to the person who died
• The debts or mortgages of the person who died (and you are not allowed to subtract the debts of the person who died)
• Bank accounts that are owned by multiple persons, including the person who died

The final total must not exceed $150,000 in order to qualify for the California small estate affidavit form.

Your qualification

You're entitled to use the small estate procedure if you have a legal right to inherit from the deceased. People who qualify include a beneficiary in the deceased's will and the guardian or conservator of the estate.

If the deceased died without a will (intestate), then you must be someone who has a right to inherit under the state intestacy inheritance law (spouse, child, or possibly other relatives if no spouse or child exists).

The estate must not already be in probate court before you begin your procedure. If it is, the personal representative of the estate must agree in writing to let you file a small estate affidavit.

California small estate affidavit instructions

If you and the estate qualify, then you can complete the affidavit. Follow these steps:

1. Obtain and complete the California small estate affidavit. You must obtain the form used by the probate court in the county where the deceased was a resident. You can obtain it in person or by accessing your court's self-help center online and downloading the form there. Follow the instructions on the form to complete it.

2. Include attachments. You will need to attach the following documents to the affidavit of a small estate:

• A certified copy of the death certificate of the person who died
• Proof that the deceased owned the property you are listing (bank statements, storage receipts, stock certificates, etc.)
• Proof of your identity (a driver's license, state ID, or passport)
• An Inventory and Appraisal (Form DE-160) of all real property owned by the decedent in California. Get this form signed by a probate referee at the court before attaching it (call the court and ask how to get it signed). If there is no real property, then you do not need this form.

3. Obtain other signatures. If anyone else is legally entitled to inherit from the deceased, they must sign the affidavit, agreeing to let you inherit all of the property you have listed.

4. Get the documents notarized. While the state of California does not require you to get the form notarized, you will need to present the document to financial institutions to get the deceased's property transferred, and they will require that it be notarized.

5. Transfer the property. You must wait until 40 days after the date of death to take the affidavit and attachments to any person or company holding the property you are seeking to have transferred to you.

The small estate affidavit procedure for California is relatively simple to complete and allows you to obtain access to your loved one's property quickly. Whether an estate is large or small, it is important to have estate planning documents in place—before they are needed.

This article is for informational purposes. This content is not legal advice, it is the expression of the author and has not been evaluated by LegalZoom for accuracy or changes in the law.

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