Small Estate Affidavit
Transferring Personal Property Worth Less than $166,250
When a person dies owning personal property worth less than $166,250 (for persons who died after January 1, 2020), there is a procedure to transfer the assets of his or her estate to the heirs without going to probate court.
Probate Code §§ 13100 – 13115 provide for a summary procedure to transfer the personal property of a decedent without going through a probate action if all of the assets are valued at less than $166,250 and at least forty (40) days have elapsed since the death of the decedent. Each of the heirs are required to fill out and sign, in front of a notary public, an affidavit that conforms to California law. Then, the heirs must attach a certified copy of the death certificate to the affidavit.
The affidavit and certified copy of the death certificate can be presented to a bank, financial institution, self-storage facility, or similar holder of the decedent’s property. Sometimes, a bank or financial institution will require that the claimant make the claim on their own forms or they may require the claimant is in possession of the key to a safe deposit box.
Normally, the affidavit includes a hold harmless clause that will indemnify the holder of property against any and all claims that the holder of the property wrongfully transferred the property of the decedent to the claimant.
Any holder of property must relinquish the property to the heirs when presented with the affidavit and the certified copy of the death certificate. Probate Code § 13105(b) allows the heirs to sue the holder of the property if they refuse a demand for transfer to the heirs after the required papers are presented. The heirs can give a demand letter to the holder of the property and then file a court action with the probate court to order that the property be released. Part of the remedy is a mandatory award of attorney fees if the court finds that the property holder acted unreasonably.
Here are the steps to obtain the decedent’s property:
- Determine who is entitled to the property of the decedent;
- Determine whether the value of the property of the decedent is less than $166,250;
- Make sure that at least 40 days has elapsed since the death of the decedent;
- Fill out the Affidavit (but do not sign it yet);
- Obtain a certified copy of the death certificate;
- Go to a notary public so that your signature can be acknowledged (notorized) on the affidavit; and
- Present the affidavit and certified copy of the death certificate to any and all holders of the property of the decedent.