UPDATE AS OF APRIL 1, 2020 – THE LIMIT IS NOW $184,500 OR LESS. SUBSTITUTE $184,500 INSTEAD OF $166,250 or $150,000 IN THIS ARTICLE
A very common non-probate transfer is the use of affidavits to transfer personal property not exceeding $150,000 in value. This is a cumulative $150,000 of qualifying assets even if at different financial institutions. Similar to the above you must wait 40 days after death before you can use this procedure. The valuation date is not the date of death but rather the date of the affidavit signing. Though some financial institutions have their own forms most use attorney drafted forms that contain all the elements required by the California probate code. The form is generally notarized. This only works for personal property and does not work for real estate.
Unlike the other mini probate options there is no appraisal required. Also, no bond is required. There is no publication. The Court does not issue Letters. In fact, California Probate Code 13100 generally has absolutely no Court involvement whatsoever and is not filed in Court… unless someone commits fraud or in some other rare situations. It is simply a signed affidavit, under the penalty of perjury, declaring a number of items required by the probate code. This contributes to fraud (and/or mistaken use) that does happen with 13100 declarations. It’s thus important to work with a qualified probate attorney to make sure you do not accidentally commit fraud.
A 13100 declaration will provide:
1. That 40 days have elapsed since death;
2. Total California estate is $150,000 or less currently;
3. No proceeding is now being conducted in California for administration of the estate;
4. Description of property (i.e. “Wells Fargo Bank account #123456);
5. Names of successor in interest;
6. No other person has a superior right;
7. Attach death certificate;
The holder of property is specifically not liable for paying the money out pursuant to this section (PC 13106) which allows financial institutions to pay the money out without a huge ordeal generally. Also, a 13100 declaration can often be used to get the items out of a safe deposit box.
Though fraud happens the probate code specifically provides for treble damages for fraudulent use. (PC 13110) This is a great California probate code section if you feel someone else has used probate code 13100 to wrongfully take property that should have gone to you. Treble damages mean TRIPLE! Thus, if a person wrongfully took $30,000 we could potentially recover $90,000 in a lawsuit against that person!
A person who uses a 13100 declaration, and receives property, has personal liability up to extent of value they received. The liability cap is based on fair market value at date of death. In rare cases this can cause the recipient a problem! (PC 13109).
As indicated above, some financial institutions have their own small estate forms which they ask you to use. Additionally, some institutions require an affidavit of domicile also as well as a W-9 showing the recipient’s social security number. To avoid delays it’s not a bad idea to supply affidavit of domiciles and W-9s with the small estate affidavit form. Your California probate attorney can prepare these for you.
A key point with using PC 13100 small estate affidavits is that not all assets count toward the $150,000. PC 13050 specifically excludes a few items from the calculation:
Speaking of trusts 13100 small estate affidavits can be used by the trustee, that is the residuary beneficiary of a pour over will, to claim assets that are not in the trust.
Attorney fees are by agreement of the parties. There are no fees for the PR when using this code section.
All the information required on California Probate Process are here.