When someone dies in the state of California, their estate usually goes through a probate proceeding, which is a lengthy and costly court process. However, the state law allows certain heirs to skip this step via a "small estate" affidavit, also known as California Probate Code Section 13100, to claim the decedent's property.
How California Defines Heirship
After a person dies, their heirs are people who will inherit their property. The deceased usually has named heirs in their last will and testament. But if they don't have a will, the state determines who the heirs of the decedent's estate are through intestate succession laws. According to California law, if a person dies:
- With children but no spouse, their children are the heirs.
- With a spouse but no other relatives, their spouse is the heir.
- With parents but no other relatives, their parents are the heirs.
- With siblings but no other relatives, their siblings are the heirs.
- With a spouse and one child or grandchild, their spouse is heir to all of their community property and half of their separate property.
- With a spouse and two or more children, their spouse is heir to all of their community property and a third of their separate property.
- With a spouse and parents, their spouse is heir to all of their community property and half of their separate property. Their parents will inherit the other half.
This typically includes only those assets that the deceased person owns alone. Some assets are exempt from intestate succession laws. These items will pass to a co-owner or a beneficiary named by the decedent, whether or not there is a will:
- Property transferred by the decedent to a living trust.
- Proceeds from a life insurance policy.
- IRA, 401(k) or retirement account funds.
- Transfer-on-death (TOD) account securities.
- Payable on death (POD) bank accounts.
- Autos with TOD registration.
- Property owned in joint tenancy or community property.
Small Estate Affidavit Shortcut to Avoid Probate Process
California Probate Code Section 13100 allows survivors to transfer property via simplified probate procedures. In fact, they may avoid probate entirely by filing a "small estate" affidavit. The value of the deceased's property must be less than a certain amount.
All an heir has to do is prepare a short legal document signed under oath stating their entitlement to a particular asset. The institution or person holding the property will need the affidavit and a copy of the person's death certificate in order to release the asset to the heir. This procedure is available only under these circumstances:
- The estate's value is not greater than $166,250. Under this requirement, there is a 40-day waiting period before an heir can collect or distribute assets.
- The decedent owned real estate with a value not greater than $55,425. In this instance, there is a six-month waiting period before an heir can collect or distribute assets.
California excludes certain properties when calculating the value of an estate:
- Real estate in another state.
- Joint tenancy property.
- Property that automatically goes to the surviving spouse.
- Life insurance or death benefits.
- Assets not subject to probate that go to beneficiaries.
- POD multiple-party accounts.
- Registered mobile or manufactured homes.
- Numbered vessels.
- Registered motor vehicles.
- A salary of more than $16,625.
- Payment for military service.
- Property held in trust, including living trusts.
When to Use an Affidavit of Heirship
California does not require the person filing an affidavit of heirship to do so immediately. They must, however, file within a few years of the person's death. The decedent cannot have a will, and court administration of their estate must not be necessary.
Heirship proceedings occur in the county where the deceased lived or where their property is located. If they did not own real property, these proceedings may take place in the county where the decedent had personal property. The person filling out the form must attach to their request a copy of the deceased's will and the executor's written consent along with an inventory and appraisal form. The court then records the affidavit in the official land records office of the county where the filing took place.
Filling Out an Affidavit of Heirship
The affidavit must contain specific information to be valid, such as basic information about the heir, details about the property, and information about any other known heirs. Evidence of the person's relationship to the deceased, such as a birth certificate, is also helpful. The person filing the affidavit must also file a decree of determination of heirship, which establishes their identity as an heir and the validity of their claim. If the court grants the decree, they must notify all relevant parties that they filed the petition.
California law allows entities who believe they have a claim to a decedent's property the right to dispute heirship. If a legal contest occurs, the court will schedule a hearing for that party to dispute another person's claiming rights.
Witnesses Required for Affidavit of Heirship
There must be two or three disinterested witnesses present when a person signs an affidavit of heirship. There must also be a notary public. The person who witnesses the signing of an affidavit cannot be a stranger and should not have an interest in the estate or be an heir or relative to the deceased.
The witnesses must swear that they knew the person who died. They must also declare that the decedent was not in debt and that they know the true identity of their heirs or family members. They must confirm when and where the person died. Finally, they must also acknowledge that they will receive no financial gains from the estate.
- Law Offices of Daniel Leahy: Proving and Contesting Heirship in California
- California Legislature: Probate Code Sections 13000-13660 Disposition of Estate Without Administration
- NOLO: Intestate Succession in California
- NOLO: Claiming Property With Affidavits
- County of Santa Clara Superior Court: Preparing the Petition for Probate
- The Judicial Branch of California: DE-160 Inventory and Appraisal
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.