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Small Estates Law

Does an Orange County, California, Relatively Small Estate Have to be Probated?

In Orange County, as well as all of California, estates with probate assets (see below for excluded assets) that are valued at more than $166,250 have to be probated.

However, there are various ways to avoid probate in Orange County as well as all of California. A small estates law affidavit procedure is one that may be used if the “probate estate” is $166,250 or less. No documents are required to be filed with the Superior Court.

Figuring out if the Estate is Worth $166,250 or Less

To calculate the value of the estate include:

  1. All real and personal property.
  2. (2) All life insurance or retirement benefits that will be paid to the estate (but not any insurance or retirement benefits designated to be paid to some other person).
Exclusions From the $166,250 Limit Calculation

In determining the total gross value of the estate, certain statutory exclusions are required, i.e., the $166,250 gross fair market value limit. 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.

What Assets Can Be Transferred by Affidavit?
  1. Except as set forth above, real property valued up to $55,425 that the decedent owned in his or her name only. Although California Probate Code §13200 allows real property valued up to $55,425 to be transferred with a small estates affidavit, title companies might be reluctant to accept the affidavit when determining whether to issue title insurance. A probate might be necessary to avoid this problem.
  2. Except as set forth above, personal property that the decedent owned in his or her name only valued at $166,250 or less.
  3. All life insurance or retirement benefits that will be paid to the estate (but not any insurance or retirement benefits designated to be paid to some other person).

Note: If the Decedent dies with real property over $55,425 OR a combination of personal property and real property (real property over $55,425) but collectively under the value of $166,250, then the heirs can collect the property with a Petition to Determine Succession to Real And Personal Property pursuant to California Probate Code § 13150 et seq.

When is the Value of the Assets Determined?

At the date of death, even if the affidavit or declaration is signed years later.

When Can California’s Small Estates Law Be Used?

The affidavit must be signed upon the expiration of 40 days from the date of death.

Who Can Use the Small Estates Affidavit?

Only a successor or successors of the decedent can use the affidavit procedure. Successor or successors mean those persons who to succeed to the property under the decedent's Will or by intestate succession. Those persons include beneficiaries and heirs of the estate and trustees of a decedent's trust.

What has to be Done to Collect the Personal Property?

The affidavit or declaration must be signed under penalty of perjury and include the information required by applicable law. The affidavit or declaration is then given to the institution that holds the personal property.

Do Decedent’s Creditors Have To Be Paid?

Yes. Decedent’s creditors cannot be avoided by the affidavit or declaration process. It may be advisable regarding estates that are insolvent or close to insolvency to be probated. That way the California Probate Code dictates which creditors will be paid from the estate, and how much.

Conclusion

If you are an executor under a Will or a person who will represent the estate of the decedent in Orange County, California please contact me. Many times it can be beneficial to initiate a probate. Many times the claims of creditors can be avoided or even barred. To gain information on Orange County, California probate or if you need the assistance of a probate lawyer, you can call me for a free consultation. You can reach me by phone at (949) 243-0408, by email at wksweeney@gmail.com or through via my online contact form.

Client Reviews
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Earlier this year, we were searching for an attorney to process a Heggstad Petition. We did a search on Google and read an article that was written by William Sweeney. The article was very clearly written and expressed almost the exact situation we found ourselves in, so I emailed William to interview him. He spent a good amount of time (for free) listening to the background of our situation...I highly recommend William for probate/Heggstad issues in California. Emma
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I would highly recommend hiring Mr. Sweeney for your Probate or Heggstad petition needs! He was amazing and super easy to work with! He had my Heggstad drafted and filed within 1 week from when I provided all the info to him. 60 days later, I hear that the Judge granted everything asked for in the petition. John
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Bill Sweeney and his incomparable paralegal Jennifer Fejzic represented and advised me through the probate of a parent's estate. Having practiced law myself for over 30 years, I expected expertise, precision, and wisdom -- all of which Bill and Jennifer richly delivered, promptly and at a reasonable, indeed more than fair, fee. I recommend Bill and Jennifer with gratitude and confidence. Greg