Probate Alternatives for Low Value Land: Small Estate Affidavit for Real Property DE-305
In California, most real property owned by a person at their death is subject to probate. However, the Probate Code provides an alternative process for low-value properties. If a property was worth less than $61,500 as of a decedent's death, the property can be distributed to the decedent's heirs by a "Small Estate Affidavit for Real Property."
The small estate affidavit for real property process can be particularly helpful for successor trustees where the decedent left vacant land that was not titled into the name of the trust. Instead of filing a Heggstad petition or probate, the successor trustee can file a small estate affidavit, so long as the decedent also left a pour-over will.
To prepare a small estate affidavit for real property under California law, the following steps and requirements must be met:
Determine the Value of the Estate
The gross value of the decedent's real property in California must not exceed $61,500 for the affidavit procedure to be applicable.
The value must be shown by the appraisal report of the local "probate referee." Probate referees are appraisers specially designated by the court to issue valuations in probate. You can find contact information for your local probate referee here: https://www.sco.ca.gov/eo_probate_contact.html.
Time Requirements
At least six months must have elapsed since the decedent's death before the affidavit can be filed.
Contents of the Affidavit
The affidavit is printed on the judicial council from DE-305, available here: https://www.courts.ca.gov/documents/de305.pdf
Inventory and appraisal: An inventory and appraisal of the decedent's real property, excluding certain properties as specified in Probate Code 13050, must be attached. The appraisal should be made by the local probate referee. Prepare judicial council form DE-160, along with attachments 1 and 2, and provide all three forms to the probate referee. The referee will complete and sign the DE-160 with the determined valuation.
A certified copy of the decedent's death certificate: Certified death certificates can be obtained from the vital records department of the county where the decedent lived at the time of their death. Certified certificates can generally only be obtained by immediate family members. If you are not an immediate family member, you may need the assistance of a family member or a court order.
Who Can File?
A small estate affidavit for real property can only be filed by the person entitled to inherit the property. If the decedent left a pour-over will, then the successor trustee of their trust would be entitled to file the affidavit. Otherwise, the decedent's heirs would typically need to file the affidavit themselves.
Notarization and Original Signatures
The affidavit must be notarized. Generally, wet ink original signatures should be filed with the court in person. Although most California courts now use e-filing, small estate affidavits must still be filed in person, in their original form.
Filing and Recording
The affidavit must be filed in the superior court and a certified copy of the affidavit must be recorded with the county recorder.
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Contact Law Office of Ravi Patel if you need assistance with a small estate affidavit. Book an appointment below or call 510-443-0443. Serving all of California including Oakland, Berkeley, San Francisco, San Jose, Mendocino Sacramento, Madera, Fresno, Bakersfield, San Bernardino, Riverside, Santa Barbara, Los Angeles, Orange County, and San Diego.
