California offers some probate shortcuts for surviving spouses and for "small estates." These procedures make it easier for survivors to transfer property left by a person who has died. You may be able to transfer a large amount of property using simplified probate procedures or without any probate court proceedings at all -- by using an affidavit. And that saves time, money, and hassle.
Here are the ways you can skip or speed up probate. (If the affidavit procedure is used, there's no need to use the simplified probate procedure.)
Using a Spousal Property Petition
Assets inherited by the surviving spouse or registered domestic partner can be transferred with a streamlined procedure, called a Spousal (or Domestic Partner) Property Petition. The petition must be submitted to the probate court for approval, but the process is simple and much faster than regular probate. There is no limit on the value of property that can be transferred this way.
Claiming Property With a Simple Affidavit
California has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than a certain amount. All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property -- for example, a bank where the deceased person had an account -- gets the affidavit and a copy of the death certificate, it releases the asset.
The out-of-court affidavit procedure is available in California if:
1. The value of the estate is no more than $150,000, as calculated using exclusions listed in "Simplified Court Procedures," below. There is a 40-day waiting period. Cal. Prob. Code §§ 13050, 13100 and following.
2. The estate contains real estate up to $50,000 in value. There is a six-month waiting period. Cal. Prob. Code §§ 13200 to 13208.
Simplified Probate Procedures
California has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate.
You can use the simplified small estate process in California if the estate has a value up to $150,000. Excluded from calculating value: real estate outside California; joint tenancy property; property that goes outright to a surviving spouse; life insurance, death benefits, and other assets not subject to probate that pass to named beneficiaries; multiple-party accounts and payable-on-death accounts; any registered manufactured or mobile home; any numbered vessel; registered motor vehicles; salary up to $15,000; amounts due decedent for services in the armed forces; property held in trust, including a living trust. Cal. Prob. Code §§ 13150 and following.
For More Information
For help determining if an estate qualifies for one of these probate shortcuts, or handling an estate in general, see The Executor's Guide, by Mary Randolph (Nolo), or Estate Planning Basics, by Denis Clifford (Nolo).
Last updated on 04/17/12.