What is a Small Estate Affidavit?

A Small Estate Affidavit is a legal document that can expedite the process of transferring certain assets of a deceased person to their successor owners without the need to go through the formal probate process. In the state of California, if the total value of the decedent's estate qualifies as a "small estate" under the state's legal thresholds, an heir or legal representative may use a Small Estate Affidavit to claim the decedent's assets. This can save time, effort, and expense associated with the traditional probate process.

What is Considered a Small Estate?

The definition of a small estate varies by state. In California, an estate may be considered small and therefore eligible for the Small Estate Affidavit process if it meets certain conditions related to the value and type of assets involved.  These amounts are indexed to inflation and change periodically.  The below are correct for 2023.

Financial Assets

Financial assets include things like bank accounts, stocks, bonds, and other monetary instruments. For financial assets to be transferred using a Small Estate Affidavit in California, the total value of the financial assets and real property assets must be $184,500 or less.

Real Property

Real property encompasses interests in land and any structures on it. Under California law, the gross value of all real property in the decedent's name must be $61,500 or less to be eligible for transfer using a Small Estate Affidavit for real property, which is named Affidavit re Real Property of Small Value (DE-305).

Exempt Property

Certain types of property are exempt from probate and are therefore not included in the calculation of the decedent’s estate value for the purposes of the Small Estate Affidavit. Such exempt property includes, but is not limited to, joint tenancy property, life insurance, retirement accounts, and pay-on-death accounts, as well as an amount owed to the decedent as final salary or compensation. 

Heirs or Succession

The Small Estate Affidavit requires the claimant to attest to their status as a successor-in-interest to the decedent’s assets. Succession laws in California will determine who the rightful heirs are, particularly in the absence of a will. These laws dictate a specific order of inheritance, prioritizing spouses and children, then extending to other relatives if the decedent did not have a surviving spouse or child.

Step-by-Step Guide to Completing Transfer of Assets using a Small Estate Affidavit

Using a Small Estate Affidavit to transfer assets can be broken down into several clear steps:

• Check Eligibility: Determine whether the value and type of the decedent's assets meet the requirements for a small estate in California.
  
  

• Identify Heirs: Establish the decedent's rightful heirs according to California's succession laws.
  
  

• Prepare the Affidavit: Complete the Small Estate Affidavit, providing all necessary details and ensuring all legal requirements are met.
  
  

• Submit the Affidavit: After a waiting period (40 days from the date of the decedent's death in California), submit the completed affidavit to the entity that holds the asset, such as the bank or brokerage or in the context of real property, file it with the court. 

• Transfer of Assets: Upon processing of the affidavit, the entity will release or transfer the assets to the heir(s) as directed.