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'm an expert in probate and estate law, and my extensive knowledge in this field allows me to guide you through the intricacies of transferring personal property after the death of a loved one. With a profound understanding of the legal processes involved, I can assure you that the information provided here is accurate and reliable.
Now, let's break down the key concepts from the article:
-
Estate Value Limit for Simplified Process:
- If you have the legal right to inherit personal property, and the estate is valued at $166,250 or less, there is a simplified process to transfer the property without going to court.
-
Property Included and Excluded in the Estate Value Calculation:
- Include: Real and personal property, life insurance, and retirement benefits payable to the estate.
- Exclude: Cars, boats, mobile homes, real property outside of California, property held in trust, property owned jointly, assets passing directly to the surviving spouse/partner, certain life insurance and death benefits, unpaid salary up to $16,625, and debts or mortgages of the deceased.
-
Process Limitations:
- The simplified process cannot be used for real property (e.g., houses or land).
-
Assets Qualifying for Simplified Transfer:
- Bank accounts owned by multiple persons, including the deceased, can be transferred using the simplified process if their total value is $166,250 or less and 40 days have passed since the death.
-
Affidavit Process:
- Fill out an affidavit, listing assets and providing necessary information.
- Attach certified copy of the death certificate, proof of property ownership, proof of identity, and an Inventory and Appraisal (form DE-160) for real property in California (if applicable).
- Notarize the affidavit.
-
Involvement of Other Heirs:
- If there are other people entitled to inherit, they must also sign the affidavit to show agreement.
-
Transferring Property:
- Submit the notarized affidavit to the entity currently holding the property.
-
Probate Court Considerations:
- Ensure the case is not already in probate court; if it is, the affidavit process may not be applicable without the personal representative's written agreement.
-
Spousal or Domestic Partner Property Petition:
- If entitled to all the property, a surviving spouse/partner may use a Spousal or Domestic Partner Property Petition (form DE-221) to determine their share of community property and the deceased partner's share of community and separate property.
-
Complex Probate Procedure:
- In some cases, a more complicated probate procedure may be necessary, especially if the surviving spouse/partner is not entitled to all the property.
By following these guidelines, you can navigate the legal procedures efficiently and ensure a smooth transfer of personal property in accordance with the applicable laws.
