Court procedures can be expensive, complex and lengthy, so if there's a shortcut, it pays to consider it. In California, when someone dies, her estate usually has to go through a court procedure called probate. But in particular circumstances, the heirs can skip probate with an affidavit authorized under California Probate Code 13100 and related provisions. This is often termed a small estate affidavit in California.
What is Heirship?
Many people draw up wills in order to specify who is to inherit their property when they die. In California, a person can leave property to anyone in a will, although a surviving spouse may get a part of the estate as community property. However, a person has no obligation to leave her separate property to her spouse, children or other relatives.
Those who are named in a will to inherit are called beneficiaries. If a person dies without a will in California, the property passes to heirs instead of beneficiaries. Heirs are a deceased's closest living relatives, and the order of inheritance is set out in the California Probate Code. A surviving spouse and/or surviving children are first in line. If a deceased doesn't leave a spouse or children, the heirs are her parents and siblings.
Generally, whether a person leaves a will or not, the estate must pass through a court-supervised process called probate. In probate, the personal representative of the deceased collects assets, pays debts and locates those in line to take property. However, in certain cases, affidavits can be used instead.
Read More: Affidavit of Heirship When a Spouse Dies
California Probate Code 13100
Under California Probate Code 13100 and related provisions, affidavits can be used in certain cases to transfer the property of a deceased outside of probate. These statutes apply only in "small estates," where the value of the decedent's real and personal property in California totals $150,000 or less. If that is the case, and 40 days have passed since the death of the person, her heirs can file an affidavit asking to have property transferred to them outside of probate. They can do this if probate hasn't yet been filed or if it has, but the deceased's personal representative consents in writing.
By means of the small estate affidavit in California, heirs can ask for a variety of property. They can ask to collect money due the decedent. They can also ask for ownership of personal property belonging to the decedent, or to have certain property transferred to them. This can include a note evidencing a debt and securities.
Preparing an Affidavit of Heirship in California
To transfer property of a deceased by affidavit, you must prepare the affidavit according to the law. Under California Probate Code 13100 and 13101, the affidavit must set out all of the information that brings the case within the terms of the statute. This includes the name of the deceased and the date of death, verified by attaching a certified copy of the death certificate. It must also state that the person or persons signing are the legal heirs of the deceased and that no other heirs have a superior claim. The heir or heirs signing the affidavit must do so under penalty of perjury.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.