We always encourage our clients to setup a living trust to ensure that their property gets transferred quickly and efficiently to their heirs upon their death. We advise each and every client to keep us informed of any significant changes to their estate so that any newly acquired assets are properly transferred into the trust. One common question, however, is “what happens if an asset does not get added to the trust?”
The simple answer is that the property must go through the probate process (with the exception of property held jointly with a right of survivorship or property held as community property). Of course, the probate process is lengthy and will cost money. However, one major exception applies.
With regard to personal property only, California has a simplified probate procedure when the total value of the decedent’s personal property does not exceed, subject to certain exceptions, $150,000 (as of January 1, 2012). This process is commonly referred to as the “small estate affidavit” procedure. This procedure allows a person to acquire title to the asset by filling out a relatively simple form. The small estate affidavit may be used by either the beneficiaries named in a will or a trust, or the decedent’s heirs if the decedent had no will. Prob C § 13100; Prob C §§ 6401 – 6402.
To take advantage of the procedure:
(1) the gross fair market value of the decedent’s personal and real property assets in California must be less than $150,000 (subject to certain exclusions found in Probate Code § 13050), and
(2) 40 days have passed since the decedent died. Prob C § 13100.
You do not have to include in the calculation any real property held in joint tenancy, multiple party bank accounts, payable on death bank accounts, assets held in a revocable trust, and life insurance contracts, etc. This is important.
If you have a trust and the majority of your assets were transferred into the trust, but you accidentally forgot to change the title of your car to the name of the trust, the small estate affidavit procedure acts as an escape route and will allow you to avoid probate.
If you forgot to change ownership to your checking, savings, or other account to the name of the trust, the small estate affidavit procedure is a quick and easy way to avoid probate.