Small Estate Affidavit Allows for Non-Probate Transfers of Assets

After a trust is created, it is important to transfer title to assets that you intend to have distributed pursuant to the terms of the trust into the name of the trust. This is referred to as “funding” the trust, and ensures that these assets will pass in accordance with the terms of the trust, without the need for probate administration.

Occasionally, however, during the course of the administration of a trust or estate, we will discover that an asset has been inadvertently left out of the trust. For example, a small bank account may be titled solely in the name of the decedent, without a beneficiary named on the account. What happens to this account? Does it go through probate?

If the total value of the decedent’s nonprobate estate, including the account in question, has a value of less than $150,000, it may be transferred to the successors of the decedent without the need to initiate a probate proceeding with the probate court. Title to real property may not be transferred using this procedure. The decedent’s entire estate must meet the qualifications of California Probate Court Sections 13100-13115. To learn whether it is possible to transfer a small estate or an asset without a formal probate proceeding, contact the Casiano Law Firm in San Diego.

Unfortunately, some clients have experienced difficulty in getting banks and financial institutions to recognize the validity of the small estate affidavit, and some banks are notorious for insisting that a probate court order is required to transfer an account to the successors. If the holder of the property refuses to honor a valid affidavit, the affiant can bring a statutory action to against the holder compel payment, transfer or delivery of the property, and the holder may be liable for any resulting attorneys’ fees and costs incurred by the affiant in bringing the action.

Experienced Estate Planning Attorney in San Diego

For experienced assistance with trust or estate administration, or to learn whether it is possible to transfer the assets of an estate without probate, contact the Casiano Law Firm. We offer representation in estate planning, probate and trust administration for clients throughout the San Diego area.