Tips Sheet on How to Collect Personal Property of California Decedents by Affidavit and Avoid Probate

A powerful tool to collect bank and brokerage accounts of a relative who has died is California Probate Code §13100. This law provides for the collection and transfer of personal property of a decedent by affidavit or declaration without probate court or any other legal action.The affidavit/declaration is made by the decedent's successors, those persons succeeding to the property by will or intestacy.

Requirements

1. This procedure is for personal property only, not real property. Bank and brokerage accounts are personal property.

2. Personal property and real property owned by decedent cannot exceed $150,000. Property held in joint tenancy and trust are excluded from the total. Automobiles, boats and mobile homes are also excluded from the total.

3. If the estate of the decedent includes any real property in California, the affidavit is accompanied by an inventory and appraisal of the real property.

4. Original death certificate.

5. 40 days have passed since death.

6. No probate petition has been filed in probate court for decedent's estate.

Why this is so powerful of a tool

    The affidavit is a document. It is not filed with the court, just submitted to the financial institution.
    A notary public's certificate of acknowledgment identifying the person executing the document is reasonable proof of identity of the person executing the affidavit. Personal appearance by the successor is not needed.
    If the financial institution holding the decedent's property refuses to pay, deliver, or transfer any personal property within a reasonable time, the successor may compel compliance by filing a complaint in Superior Court. The Successor is allowed to recover reasonable attorney fees.

Intestacy Distributions of Personal Property, i.e. no Will and no surviving spouse, how distributions will be decided

1. Real property passing, no surviving spouse or issue and predeceased spouse has died within 15 years

For purposes of distributing real property if the decedent had a predeceased spouse who died not more than 15 years before the decedent and there is no surviving spouse or issue of the decedent, the portion of the decedent's estate attributable to the decedent's predeceased spouse passes to predeceased spouses intestate heirs.

2. Intestacy Distributions of Decedent's personal property, no surviving spouse or issue and real property with predeceased spouse who has died more than 15 years

    to the decedent's parent or parents equally.
    If there is no surviving parent, to the issue of the parents
    If there is no surviving parent or issue of a parent to grandparents equally
    If there is no surviving parents or grandparents to the issue of those grandparents
    If there is no surviving parent, grandparent or issue of a gr andparent, but the decedent is survived by the issue of a predeceased spouse, to that issue
    If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, or issue of a predeceased spouse, but the decedent is survived by next of kin, to the next of kin in equal degree