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Hi everybody, its Andy and welcome again to my office in Los Altos, California. I'm
an attorney licensed to practice law in California as well as New York. In this
video I'm going to talk about California's small estate affidavit
procedure. Now if you're looking at a video like this, you probably are in a
situation where, for instance, somebody has passed away or, you know, you've been
approached by somebody saying 'Hey, you know, my relative passed away, etc' and
you're wondering whether or not the small estate affidavit procedure can
work in your particular situation. So, um, for those of you who don't know, actually
I take that back, I'll start from the very, very beginning. So when somebody passes away
either by natural causes or by accident, you know, victim of violent crime, etc.,
they generally will have to have their affairs winded or wound up, I guess. So,
for instance, they have to have, you know, you know, who gets their stuff, that has
to get decided, any debts that they had, you know, at the time of their death
those have to get paid off, hopefully. There's a lot of stuff like, you know, the
probate process in the U.S. is designed to handle that. Maybe you've had to
participate in that where maybe your parents passed away, you know, your
grandparents passed away, something like that. If you have not participated in it
yourself, hopefully you've seen a lot of TV shows or movies or something where
there's like a scene where somebody's passed away and all these relatives
gather and they're all long-faced and dressed in black and stuff in the
lawyer's office for the lawyer to kind of go over the will and read it out to
them and so on. That's kind of the basic idea that,
you know, something has to get done, a lot of work has to get done when somebody
passes away. So secondary to that, however, there are many different types of
processes that can happen when somebody passes away, depending on, for instance,
what they leave behind, you know, what property they leave behind, how much it's
worth and so on. There could be something done called a Summary Administration. I'm
gonna write that over here. Summary administration or summary proceeding. As
best as I know, I haven't checked every state, every country, for example. Inmost
states, possibly in every state in the US, there is a summary administration
proceeding if somebody dies and leaves stuff worth below a certain threshold
value. So in California that threshold value is a hundred and fifty thousand
dollars. So, um, if, you know, if somebody passes away they had some stuff, but they
didn't have a whole lot of stuff, it's possible that you can, you can basically
do their probate through what's called a summary administration or a summary
proceeding. That is beneficial because it's cheaper, faster, doesn't go through
court at all. So summary administration applies in some situations, but again,
like I said, it applies in situations where, you know, the person who passed
away left below a certain dollar value worth of stuff. In California, it depends
on whether or not the the decedent left real estate also, like if they owned
real estate. If they did you might not be able to use summary administration at
all, for instance. So that's kind of the background. Summary administration,
particularly in the San Francisco Bay Area where I am, a lot of times people,
you know, can't afford real estate at all so all they have is, basically non-real
property - personal property for the lawyers out there. Because of that, it is
actually quite possible for somebody to die leaving less than $150,000. That's
the threshold value in California. So, um, also I mean, obviously, if you have
somebody who is indigent or somebody who's homeless or somebody who's kind of,
you know, borderline poverty, for example, it is quite possible that they might
pass away leaving less than $150,000 worth of stuff also. So, um, $150,000,
I guess, no matter how you sort of slice it, that
is the magic number in California. In some cases it's actually quite easy to
determine whether or not somebody is, you know, whether or not their estate is
worth $150,000 or not. In some instances, for instance, even under the
most optimistic math, it's not even close, like there is no way at all this
person's estate is worth anywhere near a hundred and fifty. In those cases it's
actually very easy to just use the Small Estate Affidavit process. If you have a
situation in California where the person's estate is close. In other words
like, you know, you're not quite sure do they qualify or not, there are rules about
what goes into the $150,000, what's counted, what's not. I am
NOT going to go over those rules in this video because they're kind of, you know,
they're kind of involved to be honest. They are all in the Probate Code, however, so I
mean, it's something where, you know, that information can be obtained if it's, if
you have a situation basically where the $150,000 value
like, you know, that's cutting it kind of close. Maybe you fall, you know, under $150K,
maybe you fall over $150K, you know, it really depends. But, um, yeah, so that's the
background. $150,000 gross estate value of the decedent. That's the kind of magic
figure, I suppose. So assuming all of that was helpful and all of that made sense,
the question then becomes if your particular decedent, you know, your
deceased person, if their state really is less than $150,000
and it's your job - let's say that you're the surviving, the surviving son, the
surviving daughter - if you're the only surviving family member, let's say, and
you want to do a Summary Administration, a Small Estate Affidavit procedure in
California, how do you actually do it? So the California Probate Code that's
actually gonna be important here is Probate Code section - there's actually
two of them. One is going to be more important than the other mainly
because the second one is much longer. It's, you know, much more substantive. The
first one is fairly short, it's like this. So, anyway, so the the first Probate Code
section - the kind of the shorter one - is Probate Code section 13100. 13100.
Which I'll write over here and also link down below for you. 13100 is the
shorter one. It gives a little bit of background, but not a whole lot. The one
that you're probably going to be more interested in is the is the actual code
section that has the affidavit language in it and that one actually is Probate
code section 13101. Also linked down below and written here. But the basic
idea of the Small Estate Affidavit procedure is, essentially, just two things.
So the first is you have to wait 40 days. So it's 40 calendar days from the day
that the person has passed away. In number two you have to get a certified
death, er, sorry the death certificate rather,
from the, from the county in which the person passed away in. I'm not sure how
they look in other parts of the US or other parts of the world. In California, the
death certificates like an eight-and-a-half by eleven piece of
paper and it's, I want to say, pink with blue letters and it describes the
person's name, their birthdate, their gender, you know, what they passed away of,
what their parent's names were, where they were born, all that stuff. But yeah it's
the kind of official way to kind of prove that somebody really did pass away.
So, I guess I said two, so three, it's actually three things. So you have
to wait 40 days, you have to get the death certificate, and then you have to
take the affidavit language in Section 13101, fill it out, sign it, and so on and
you can basically take those two documents - the affidavit as well as a
death certificate - you take it to the bank, for example, if you're trying to get
a bank account, you take it to, you know, the brokerage house, etc, you take it
to whoever has the personal property you are trying to obtain and, yeah, like,
basically, most banks - every bank that I've dealt with, every financial
institution I've dealt with - generally is pretty familiar with these like, you know,
it's actually fairly common for somebody to pass away suddenly and they
did not kind of plan for it. So the Small Estate Affidavit procedure, I would
be personally kind of surprised if the bank or other institution you're dealing
with has no idea what to do like, you know, if this is the first time they've
ever seen it, I'd be a little surprised, suspicious. So, yeah, hopefully that makes
sense. A lot of you probably - some of you hopefully - might be wondering 'Okay, what
happens if I, if the person passed away leaving real property.' In other words a
house, a building, land, etc. Under Probate Code section 13115 - 1 3 1 1 5 - in
California, the Small Estate Affidavit procedure that I just described using
the language in Probate Code section 13101, that language in 13101 cannot
be used to transfer real property. Title to real property cannot be transferred
that way. That's what 13115, er, 13115 says.
Yeah, so, I will hopefully at some point put out some companion videos to this
one. If you actually have a situation where, you know, there is real estate
involved but it's fairly minor, let's say. Sorry, let me back up, if you have a Small Estate
Affidavit situation that involves real estate also, there, there are
court cases you can file, types of court cases you can file. One of them is called
a Petition to Determine Succession to Real Property. That's a mouthful. I'm
gonna write that over here. Hopefully, hopefully I can fit all that in the
screen right here. Petition to Determine Succession to Real Property,
um, you basically do that, you know, if you have a small estate situation, but one of
the items happens to be real estate. So the Probate Code for that, if you're
interested, is 13150. Probate Code section 13150. If you're looking at
the Judicial Council form, it's actually form DE-310. I am going to write that
over here, actually I'll write that down here and then I'll play another video
that I have about how to get Judicial Council Forms, but DE-310 is how you do a
Petition to Determine Succession to Real Property. If you have a situation
where the real property involved is really minor - in other words it's only
worth, you know, a couple thousand dollars, let's say, the kind of magic number is
fifty thousand dollars. If you have real estate worth that or less, you can do
something called an Affidavit revoir [annoyed] Affidavit Regarding Property of Small
Value. I got that out finally. Okay I'll write that here also. That's the form D,
Judicial Council form DE-305 write. I'll hopefully fit that down here. DE-305 and
if you're interested in that, that's Probate code section 13200. Um, yeah, so
anyway, hopefully all of that made sense. The Small Estate Affidavit procedure,
like I said, it's a way of doing a summary administration if somebody dies
and their estate is actually fairly simple. There is a way in California at least to
bypass the formal probate proceeding, there's a way to bypass, to bypass court
actually. The Small Estate Affidavit procedure I described under Probate Code
13101 does not go through court at all in California. Yeah, a lot times people
think that it does but if you can qualify under the Small
Estate Affidavit procedure in California, it actually is quite beneficial. The one
thing would be like, you know, if you don't have, er, sorry if the decedent's
estate really does have real estate in it, depending on the value of the real
estate, you know, you you're gonna have to file a court case, but, you know, you file
either the Petition to Determine Succession to Real Property or Affidavit
Regarding Property of Small Value, one of the two yeah. But if your decedent's
estate was worth less than $150,000, had no real property in it, then it's
something where you can hopefully just do a Small Estate Affidavit procedure
and just be done with it. Yeah so it's actually not terribly
complicated. 13, Probate Code section 13101 is the language that you actually
need. So,yeah, anyway hope that, hopefully that made
sense. Go ahead and comment, share, like, subscribe. Re-watch this video, tell
your friends, etc. Shameless plug. So anyway, but go ahead and comment, share,
like, subscribe, etc and hopefully this video helps you guys out. Until then I
will talk to you guys next time. Thanks.
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