Ask the County Law Librarian – Avoid Probate with Small Estate Affidavit
Q: My mother just lost a long battle with breast cancer. My sister and I were both able to be with her until the very end, which was a good thing, but now my sister is saying we have to “probate her estate.” My mother didn’t own a home or any real estate, only a few items of personal property: an old car, some costume jewelry, nothing anyone but me and my sister would want. All I know about “probate” is that people try to avoid it for some reason—can you tell me what it is and why I would want to avoid it?
A: “Probate” is a formal way of distributing a “decedent’s estate,” which is a legal term for the property left by someone when they die. In California, an estate can be distributed as an independent probate proceeding when the decedent left a will or other estate plan, or as a probate court-supervised estate if there is no will. If the property left is worth $100,000 or less, however, there is a third option, which you may be able to use: the estate can be distributed as a “small estate” under Sections 13100-13115 of the California Probate Code.
The main reason to avoid probate is cost—like any court process it can be expensive and time-consuming. In Sacramento County it currently cost $395 just to file to be the administrator of an estate, and another $395 to file for an order concerning the sale of estate property, and another $395 to file for an accounting, so you can see how the fees can add up pretty quick, not to mention the cost of your own time and transportation to and from court, etc.
Another reason many people object to probate is because like any other court record, probate court records are public records, and many people prefer that the itemized value of their property not be a matter open to the public. You can actually view all the documents filed in Sacramento County Probate Court cases initiated after February 5, 2007, online at the Court’s website.
If you are able to take advantage of the “Small Estate,” distribution procedure, you will need to complete an “Affidavit for the Collection of Personal Property” and present it, along with a certified copy of the death certificate, evidence that the decedent owned the property (e.g., stock certificate, bank passbook, storage receipt), and reasonable proof of your identity (e.g., driver's license) to the institution holding the property. The Sacramento County Public Law Library has a Step-by-Step Guide to this procedure, along with blank and sample completed forms, on our website available to download for free.
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