California Small Estate Affidavit by LA Probate Law
Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be 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. Small Estate procedures may generally be used regardless of whether there was a Will. May be used to settle estates valued at less than $100,000 after at least 40 days have passed from time of death. No administrative or legal proceeds are pending or have been conducted involving the estate. Small estates, defined as those with a total value of less than $100,000, may be settled in California without going through the formal probate process. LA Probate Law understands the death of a loved one is often a stressful and confusing time. And we know the prospect of dealing with a loved one’s estate can be intimidating. Our Los Angeles estate attorneys advise anyone settling an estate to consult with an experienced attorney and we will assist you in properly settling the estate of a loved one in an economical and hassle-free manner.
Small Estate Affidavit as useful Tool
While the small estate affidavit can be a very useful tool in appropriate situations, persons considering acting as affiant should be aware that the declarations in the affidavit are essentially made under oath and if the facts are not as presented then the affiant can potentially be held personally liable, even for errors or omissions made in good faith. With this in mind, a small estate affidavit should generally not be used when, among other considerations: there are unpaid creditors or funeral expenses; the will is of questionable validity, might be contested or is ambiguous; the heirship may be disputed; there are minor or disabled beneficiaries; probate proceedings have already been initiated; or all estate assets are not known. When the decedent leaves a Will, the original must be filed with the clerk of the court, a copy should be provided with the affidavit and the terms of the Will control the distribution of assets explains LA Probate Law. When there is no Will, the assets pass to the decedent’s heirs according to Illinois intestacy law. Small estate affidavits are commonly used for access to a safe deposit box and for the transfer of automobile title. In such cases, the appropriate entity may have their own form to be used. Keep in mind that a small estate affidavit cannot be used to transfer title to, or to sell, real estate.
Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less ad affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed. California Summary: Pursuant to California statute, if the value of an estate does not exceed $100,000, and forty days have elapsed since the death of the decedent, an interested party may demand payment on any debts owed to the decedent through a small estate affidavit. Although the Probate Code states that a declaration under penalty of perjury is sufficient, many institutions require a notarized affidavit, especially when securities are involved. Contact the institution to determine if notarization is necessary. If there are several assets to be transferred, they may all be included on one affidavit, or a separate affidavit may be used for each states LA Probate Law. If more than one person is entitled to inherit a particular asset, all beneficiaries must sign a single affidavit.
Affidavit for Collection of Personal Property
Probably the most popular use of a “Small Estate Affidavit,” also called “Affidavit for Collection of Personal Property,” is to access a Decedent’s bank or securities account. The practical (as opposed to legal) problem is that banks, brokerages, transfer agents, and institutions in general are used to transferring such accounts through a probate proceeding, in which the Personal Representative delivers a copy of his/her Letters to the institution and requests the transfer. That’s the method that institutions are familiar with, and they have come to see it as “the proper (and only) procedure” for making the transfer. Consequently, far too often, when a Successor presents a Small Estate Affidavit to an institution, the institution responds “We need Letters to make the transfer.” Many institutions – especially when securities, cash, stocks or other liquid assets are involved – may require a notarized affidavit. Personal property refers anything that isn’t real estate says LA Probate Law. One affidavit may be used for several assets being transferred, or a separate affidavit can be used for each asset. Additionally, all beneficiaries must sign a single affidavit in cases involving more than one heir. The Affidavit for Collection of Personal Property must be accompanied by a certified copy of the death certificate; evidence of the decedent’s ownership of the property; proof of the identity of the person signing the affidavit; and an inventory of all assets owned by the decedent in California. Common types of personal property include furniture, jewelry, and household goods, as well as bank accounts, stocks, and money due to the decedent. Seeking the guidance of an experienced probate attorney can often help you avoid common pitfalls, including questions about fair-valuation of property; a proper inventory and valuation of estate assets; questions or challenges involving beneficiaries or heirs; and refusal of custodian to release property.