A California affidavit for collection of personal property, also known as an affidavit for collection or delivery of personal property, is a legal document that allows someone to collect personal property that belonged to a deceased person. This affidavit gives the person collecting the property the legal authority to take possession of it.
When is a California affidavit for collection of personal property used?
A California affidavit for collection of personal property is used when a person dies and leaves personal property behind that does not have a named beneficiary. This could include things like jewelry, furniture, vehicles, or money in bank accounts. Without this affidavit, the deceased person’s possessions would sit in limbo until probate concludes. The affidavit provides a faster, more efficient way to distribute the property.
Who can complete a California affidavit for collection of personal property?
California law allows certain people related to the deceased person to complete an affidavit for collection of personal property. Those authorized include:
- Surviving spouse
- Domestic partner registered with the California Secretary of State
- Children
- Grandchildren
- Parents
- Brothers and sisters
- Any other person named in the will as executor or successor trustee
The person completing the affidavit is stating that they have the right to collect the deceased’s personal property. They must sign the affidavit under penalty of perjury.
What property can be collected with a California affidavit?
The affidavit for collection can only be used for personal property valued at less than $166,250. Personal property includes:
- Money, stocks, bonds, and other financial assets
- Vehicles and boats
- Jewelry, furniture, art, and household items
- Clothing
- Tools
- Sporting equipment
- Collections like coins, stamps, or trading cards
The affidavit cannot be used for real estate or business assets. Those would need to go through probate.
How does the affidavit process work in California?
Collecting personal property with an affidavit involves the following steps:
- Obtain the affidavit form – This can be found online or at the county probate court.
- Complete the affidavit – The survivor fills out their name, address, relationship to deceased, and list of property to be collected.
- File the affidavit – It must be filed with the Superior Court in the county where the deceased lived.
- Notify interested parties – The person filing sends notices to anyone who may have interest in the estate.
- Collect property – 30 days after notification, if no objections filed, the person can present the affidavit to collect the property.
Does the affidavit need to go through probate court?
The advantage of using the affidavit rather than probate is that it does not involve going through probate court. The affidavit allows for streamlined collection of personal property only. The estate does not need to be probated just to use the affidavit process.
Filing the affidavit with the Superior Court gives it the legal authority needed to collect the property. As long as no one contests it, the court’s involvement stops there.
When is a petition for probate required in California?
There are some situations where using an affidavit is not possible, and filing a probate petition becomes necessary. These include:
- Real estate needs to be transferred
- Business or investment accounts need to be distributed
- The estate has personal property worth more than $166,250
- There are disputes over the distribution of assets
- The deceased had significant debts that must be resolved
- The deceased did not leave a will or trust
- An interested party contests the affidavit
Probate provides court supervision of asset distribution. This becomes necessary when property needs to be appraised and liquidated or if any controversies arise. The probate process also includes officially notifying all creditors.
What happens if someone contests the affidavit?
When filing an affidavit for collection in California, the person submitting it must send notice to anyone who may have an interest in the estate. This includes close relatives who stand to inherit. If any recipient objects to the collection of property under the affidavit, they can contest it in court within 30 days.
If someone does dispute the affidavit, the court may require the entire estate to go through probate. This provides a more thorough process to determine the rights to the assets. Essentially, the affidavit no longer remains an option if objections arise.
When is notice not required for a California affidavit?
California law allows the notice requirement to be waived if the estate meets certain conditions. No notification is needed if:
- The estate’s personal property is worth less than $20,000
- The deceased had a will leaving all property to their surviving spouse
- The only property is vehicles registered with the DMV to the deceased and surviving spouse as joint tenants
In these situations, the surviving spouse can file the affidavit directly with the court without notifying any other parties. This further simplifies the process if the estate is small and undisputed.
What information is required in a California affidavit for collection?
The affidavit form will request the following information:
- Name and date of death of the deceased
- Names and relationships of surviving heirs
- The applicant’s full name and mailing address
- A statement that the applicant has the right to the described property
- A list of the personal property to be collected
- An estimated value of the property
- The applicant’s signature under penalty of perjury
The form will also include checkboxes to indicate whether notice is required or waived. Some counties may require additional supporting documentation like a copy of the death certificate.
Where does the affidavit form need to be filed?
After completing the California affidavit for collection of personal property, it must be filed with the Superior Court in the county where the deceased permanently lived. If their permanent residence was in California, you would file in that county.
Typically this filing occurs in person at the courthouse probate window. Some counties allow filing by mail. There is usually a small filing fee under $50.
How long is the affidavit valid in California?
The affidavit goes into effect 30 days after it is filed and notices are sent, if required. If no one contests the affidavit within that 30 day contest period, the affidavit remains valid for 6 months.
The person filing can collect property using the affidavit anytime during that 6 month window. If more time is needed to transfer all assets, they can request an extension from the court.
Can the affidavit be used to transfer title on vehicles?
Yes, the California affidavit for collection can be used to transfer ownership of vehicles or boats that were solely owned by the deceased. To do this, the affidavit recipient takes the form to the DMV along with:
- The vehicle’s title showing the deceased as sole owner
- The required DMV transfer forms
- Any required transfer or registration fees
Jointly owned vehicles where the surviving co-owner is listed on the title do not need the affidavit. The survivor simply needs to provide a death certificate to the DMV to have the vehicle retitled in their name.
Can a California affidavit be used to access financial accounts?
The affidavit can be used as authorization to collect money from accounts belonging solely to the deceased, like:
- Bank accounts
- Brokerage accounts
- Mutual funds
- Certificates of deposit
- Government bonds
- Unused gift cards
Accounts that listed joint owners or beneficiaries will usually transfer to the new owner directly once the company receives a death certificate. An affidavit would not be needed for those.
What happens if property is discovered after the affidavit’s 6 month period?
If additional personal property belonging to the deceased is discovered after the 6 month affidavit period expires, the heir collecting the property has two options:
- File a petition in probate court to open probate and be appointed as executor
- Complete a new affidavit for the after-discovered property and restart the notice and waiting period
Typically, if the newly found property is minimal, filing a second affidavit makes sense. If considerable assets are uncovered, formally probating the estate may be better to thoroughly administer the entire estate.
Can an affidavit be used if the deceased lived outside California?
The California affidavit for collection can only be used if the deceased was a California resident. Each state has its own laws on affidavits for small estates. If the deceased lived elsewhere, the survivor would need to check that state’s requirements.
Some states do not have an affidavit option at all. In that case, probate would be necessary even if the estate is small and non-controversial.
When is probate required instead of an affidavit in California?
As mentioned earlier, there are some situations where probate is required and an affidavit cannot be used. These include:
- Real estate needs to transfer
- Estate exceeds $166,250 value limit
- Property does not qualify as “personal property”
- Debts must be paid through the estate
- The estate includes disputes over assets
- Someone contests the affidavit
In these cases, even if the estate would prefer to avoid probate, the comprehensive court-supervised probate process is necessary to settle the estate.
Can a California affidavit avoid all taxes on estate assets?
While the affidavit provides a streamlined transfer, heirs do still need to consider potential taxes that may be owed on assets they collect. In some cases, taxes may be minimized, but it depends on the specifics of the situation.
For example, life insurance and accounts with named beneficiaries pass outside of probate and are not taxable. But other assets collected via affidavit above certain exemption amounts could incur estate or inheritance taxes.
How does a California affidavit affect creditors’ claims?
The abbreviated affidavit process impacts how creditors’ claims are handled for the deceased person’s debts. The notice provided upon filing informs creditors they must submit claims within 30 days.
After that notice period expires, creditors technically have up to 4 months from the date of death to make claims. But any claims filed in those 2-4 months would only be valid against property collected using the affidavit. Heirs are not personally liable.
Using probate provides more time for creditors to seek repayment from assets. But the estate remains liable rather than individual beneficiaries.
Does the affidavit process avoid all estate creditors?
While the abbreviated affidavit procedure limits creditor exposure compared to probate, it does not provide absolute protection from valid claims. Creditors have opportunities to submit claims and collect from estate assets.
However, California law does prevent most creditors from pursuing collections against heirs and beneficiaries who received property via affidavit. They can only seek repayment from assets that passed through the affidavit transfer.
Conclusion
A California affidavit for collection of personal property allows heirs to quickly and efficiently obtain assets from small, non-controversial estates. By filing the affidavit with the Superior Court and providing notice, the deceased’s possessions can be collected without a probate proceeding.
However, probate remains necessary if certain complications exist, such as real estate transfers, large values, or disputes over distributions. Understanding the proper use of a California affidavit can help heirs minimize legal process when eligible.