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.)
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.
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:
California has a simplified probate process for small estates. To use it, a person who inherits property (a “beneficiary”) files a written request with the superior court in the county where the deceased person lived or where the property is located asking to use the simplified procedure. The court may authorize the person 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 $166,250. To use this procedure, there can’t be an open probate case and the deceased person’s executor must give written consent to use this process. There’s a 40-day waiting period.
The request must include the following information: the county where the deceased person lived before death or the name of the county where the property is located, the approximate value of the estate, a description of the property the beneficiary is asking for, the name, age, address and relationship to the deceased person of each beneficiary or heir and the executor’s name. Cal. Prob. Code § § 13150 and following.
The following types of property are excluded from calculating the 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 $16,625; amounts due decedent for services in the armed forces; property held in trust, including a living trust. Cal. Prob. Code § 13050.
The beneficiary must attach a copy of the will and the executor’s written consent to use this process. He or she must also attach a completed inventory and appraisal to the request. Cal. Prob. Code § 8800.
Learn more about estate planning, probate, and estate administration with these books by Nolo:
For more on California estate planning issues, see our section on California Estate Planning.