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Most states have enacted laws for the expedited probate administration of small estates in order to enable heirs to obtain property of the deceased provided certain requirements are met. As a result, small estates may be summarily administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available.

If certain requirements are met, the personal property of a deceased may be transferred to the successors (such as beneficiaries of the deceased’s will, intestate heirs, guardians, conservators, trustees, and attorneys in fact) of the deceased without the need to open a probate with the probate court . In order to do so, the entire estate of the deceased must qualify as a small estate and a document known as an affidavit must be filed to initiate the process. The successors of the deceased may make their claims to the property and take title if there are no conflicting claims. Title to real property may not be transferred.

The affidavit procedure may be used only if no probate proceeding is currently pending or has taken place for the estate in California; or the personal representative of the decedent consents in writing to transfer of the property. Furthermore, the affidavit procedure may not be used until at least 40 days have elapsed since the date of the death of the deceased. The personal property for the deceased qualifies for this procedure only if the total current gross fair market value of the real and personal property of the deceased in California does not exceed $100,000. The affidavit procedure is limited solely to the transfer of the personal property of the deceased. However, the combined real and personal property of the deceased in California must be considered in determining whether the total value of the estate exceeds $100,000. Insurance policy or retirement plan proceeds payable to the estate as the designated beneficiary must be included in determining whether the total value of the estate exceeds $100,000.

Several types of property is excluded in evaluating whether the total value of the estate exceeds $100,000:

• Vehicles and other state-registered property, such as automobiles, “non-motor” vehicles (i.e., trailers, mobile homes, manufactured homes, commercial coaches, truck campers, floating homes and undocumented vessels);
• Unpaid salary: any amounts due to the decedent for services in the armed forces and up to $5,000 in unpaid salary or other compensation (including compensation for unused vacation) owing to the decedent for personal services from any employment;
• Joint tenancy interests, life estates, and property passing outright to a surviving spouse;
• Multiple-party accounts to which the deceased was a party at death to the extent the funds pass directly to a surviving party, payable-on-death payee or beneficiary; and
• Property held in a living trust.

Spiegel & Utrera, P.A. stands ready to help you during the administration of your loved one’s estate.

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