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Alternatives to Probate: Saving Time and Money

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When someone passes away one of the first steps is to list what assets are in the decedent’s name. Accounts that are in joint tenancy, have a pay on death designation, or have a beneficiary designation can be transferred with a death certificate. There may be assets remaining in the decedent’s sole name which cannot be readily transferred (call them the “problematic assets”).   For instance, the decent dies leaving a bank account with a balance of $100,000. You go to the bank and try to get the funds released or transferred. The bank officer says that they want letters testamentary.

Letters testamentary is a legal document issued to a personal representative as part of a probate proceeding after an order for probate is entered.

You do not have a probate open so you do not have such a document.  So what do you do next?  There are some non-probate options that should be looked into that can save you both time and money. Let’s look at one this time that will solve our problem:

Small Estate Affidavit: The California Probate Code allows for personal property (not real property) to be transferred to the beneficiaries of a person’s will or the person’s intestate heirs with an affidavit procedure.

The affidavit is signed under penalty of perjury and must be executed in the prescribed statutory form and content.  All of the decedent’s successors who have an interest in the property sought to be collected, received, or transferred must sign the affidavit.  The requirements are that no probate proceeding can be pending and the gross market value of both real and personal property in the decedent’s estate must not exceed $150,000. That value is typically determined as of date of death with account statements or personal property valuations. Real property values are considered as part of that number but the actual title to the real property must be cleared by other procedures. Note that the $150,000 figure does not include vehicles and trailers, mobile homes, or manufactured homes, certain unpaid salary and accrued vacation, or armed forces pay. In addition, as set forth above, the $150,000 figure does not include any property in joint tenancy, employee retirement or death benefits, or property held in a revocable trust (unless insurance policy or retirement plan has estate as beneficiary). Pay on death accounts, and accounts with a surviving party or beneficiary are also excluded. With a properly executed small estate affidavit and a certified copy of the death certificate, you should be able to get the funds released from the bank.

Stay tuned for some other probate alternatives in a future post.