How to Avoid Probate with a Small Estate
Small estates can actually avoid probate. What are the limits and how can you get help with the process?
Not all estates will require a probate proceeding. A probate proceeding is not required to collect or transfer certain real and personal property held in the decedent’s name that has a value under $166,250, as periodically adjusted by Prob C §890. Prob C §§13100, 13151. These estates are sometimes referred to as small estates.
To review, probate is a legal process for distributing a deceased person’s property to their heirs and beneficiaries and settling any debts. Even if a decedent passes intestate (without a will), if the decedent did not own real property or if the value of the real property and/or personal property is very low, their heirs may be able to transfer the asset(s) with a Small Estate Affidavit.
The process to transfer a small estate is a summary administration, which means that there is no formal probate proceeding so long wait times and/or fees associated with formal probate can be avoided. However, if there is a dispute over ownership; title; or interest in property, or the beneficiaries want protection from the decedent’s creditors, a formal probate proceeding should be utilized.
For example, Mr. B owns his primary residence in a Joint Tenancy with right of survivorship and one checking account with a balance of $10,000. The home would be transferred to the surviving joint owner by right of survivorship and therefore would avoid a probate proceeding. An attorney can file an Affidavit – Death of Joint Tenant and the transfer of the home would avoid probate. In this instance, the bank account could be transferred with a Small Estate Affidavit as it is below the threshold. It is important to note that some financial institutions have their own forms and will not readily accept an affidavit form presented by an attorney. An estate planning and/or a probate attorney will be able to assist in preparing the documents required to complete the small estate transfer.
It is important to know the options available to the surviving family. Having a brief discussion with a probate attorney may give your family the peace of mind of knowing whether they will be involved in a probate proceeding or not.
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If you have any questions or want help with this process, please contact us at:
Soojin Kim, Attorney at Law
4989 Golden Foothill Pkwy., Ste. 6
El Dorado Hills, CA 95762