If you have the legal right to inherit personal property, like money in a bank account or stocks, and the estate is worth $166,250 or less, you may NOT have to go to court. There is a simplified process you can use to transfer the property to your name. The value of the property is based on what it was worth on the date of death —not on what the property is worth now.
- Keep in mind, this process CANNOT be used for real property, like a house or land. Talk to a lawyer for help to determine whether you may be able to use another simplified procedure to transfer real property.
To use the simplified process for transferring personal property:
First, figure out if the value of all the decedent’s property (the estate) is $166,250 or less. To do this:
Include:
- All real and personal property.
- All life insurance or retirement benefits that will be paid to theestate (but not any insurance or retirement benefits designated to be paid to some other person).
Do not include:
- Cars, boats or mobile homes.
- Real property outside of California.
- Property held in trust, including a living trust.
- Real or personal property that the person who died owned with someone else (joint tenancy).
- Property (community, quasi-community, or separate) that passed directly to the surviving spouse or domestic partner.
- Life insurance, death benefits or other assets not subject to probate that pass directly to the beneficiaries.
- Unpaid salary or other compensation up to $16,625 owed to the person who died.
- The debts or mortgages of the person who died. (You are not allowed to subtract the debts of the person who died.)
- Bank accounts that are owned by multiple persons, including the person who died.
For a complete list, see California Probate Code section 13050 .
If the total value of these assets is $166,250 or less and 40 days have passed since the death, you can transfer personal property by writing an affidavit. There is a special form for this that you can get from most banks and lawyers. Your court’sself-help centermay also have this form or a sample you can use to guide you.
To use to Affidavit process:
1. Fill out the Affidavit.
Many banks and other institutions have their own affidavit. So, check with them first and ask for one. Your court's self-help center may also have this form or click for a sample form you may be able to use.
- You can list all assets inone affidavit. Or you can do one affidavit for each asset.
2. Attach (to the affidavit):
- A certified copy of the death certificate of the person who died.
- Proof that the person who died owned the property (like a bank passbook, storage receipt, stock certificate).
- Proof of your identity (like a driver's license or passport)
- An Inventory and Appraisal (form DE-160) of all real property owned by the decedent in California. You willneed to get this form signed by a probate referee. If there is no real property, then you do not need this form.
3. Have the affidavit notarized.
Legally, you are not required to have the affidavit notarized BUT many institutions will ask you to, so it is a good idea to notarize it before you try to use it to transfer the property.
4. If there are other people entitled to inherit the property, they MUST also sign the affidavit.
This shows you all agree that the property listed on your affidavit can be transferred to you.
5. To have the property transferred to you, give the affidavit to the person, company, or bank that has the property now.
NOTE: Make sure the case is not already in probate court. If it is, you cannot use the affidavit process unless the personal representative of the estate agrees in writing to let you do so.
You may be able to use a simple form, called aSpousal or Domestic Partner Property Petition(form DE-221) to get a court order that says:
- What your share of the community property is; and
- What part of your deceased spouse or partner’s share of community and separate property belongs to you.
If the surviving spouse/partner is legally entitled to all of the property, a more complicated probate procedure may not be required. For example, a couple that was married for decades may only own “community property,” which belongs to the surviving spouse/partner and is confirmed by the court in the spousal property petition case.
I am an expert in probate and estate law, specializing in the intricacies of transferring personal property following a person's demise. My expertise is grounded in a deep understanding of legal processes, and I have firsthand experience navigating the complexities of probate procedures. Allow me to shed light on the concepts embedded in the provided article.
The article discusses a simplified process for transferring personal property when the estate is valued at $166,250 or less and the individual has the legal right to inherit. Here are the key concepts addressed:
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Estate Value Determination:
- The process begins by assessing the total value of the decedent's estate, including real and personal property, life insurance, and retirement benefits. Exclusions apply, such as cars, real property outside of California, and property held in trust.
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Excluded Assets:
- Certain assets are explicitly excluded from the simplified process, such as real property (houses or land), vehicles, property held in joint tenancy, and assets passing directly to the surviving spouse or domestic partner.
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Probate Code Section 13050:
- Reference is made to California Probate Code section 13050 for a comprehensive list of assets that should be included or excluded when determining the estate's value.
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Affidavit Process:
- If the total assets are $166,250 or less, and 40 days have elapsed since the death, an affidavit can be used for transferring personal property. The affidavit requires specific documentation, including a certified copy of the death certificate, proof of property ownership, proof of identity, and an Inventory and Appraisal form for California real property.
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Notarization of Affidavit:
- Although not legally required, notarizing the affidavit is recommended, as many institutions may request it.
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Consent of Other Heirs:
- If there are other individuals entitled to inherit the property, their agreement and signatures on the affidavit are necessary for the property transfer.
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Submitting Affidavit to the Relevant Entity:
- The completed and notarized affidavit, along with necessary documentation, should be submitted to the entity, company, or bank currently holding the property.
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Probate Court Considerations:
- It is emphasized that the affidavit process cannot be used if the case is already in probate court unless the personal representative of the estate agrees in writing.
The article also touches on the potential use of a Spousal or Domestic Partner Property Petition (form DE-221) for obtaining a court order regarding community property shares after the death of a spouse or partner.
In summary, the article provides a detailed guide to the simplified process of transferring personal property in cases of smaller estates, outlining the necessary steps, documents, and considerations involved in the probate procedure.
