Chapter 5 - Affidavit Procedure for Real Property of Small Value

California Probate Code — §§ 13200-13211

Sections (15)

Amended by Stats. 2019, Ch. 122, Sec. 13. (AB 473) Effective January 1, 2020.

(a)No sooner than six months from the death of a decedent, a person or persons claiming as successor of the decedent to a particular item of property that is real property may file in the superior court in the county in which the decedent was domiciled at the time of death, or if the decedent was not domiciled in this state at the time of death, then in any county in which real property of the decedent is located, an affidavit in the form prescribed by the Judicial Council pursuant to Section 1001 stating all of the following:

(1)The name of the decedent.

(2)The date and place of the decedent’s death.

(3)A legal description of the real property and the interest of the decedent therein.

(4)The name and address of each person serving as guardian or conservator of the estate of the decedent at the time of the decedent’s death, so far as known to the affiant.

(5)“The gross value of all real property in the decedent’s estate located in California, as shown by the inventory and appraisal attached to this affidavit, excluding the real property described in Section 13050 of the California Probate Code, does not exceed [Insert dollar amount specified in subdivision (h)].”

(6)“At least six months have elapsed since the death of the decedent as shown in a

certified copy of decedent’s death certificate attached to this affidavit.”

(7)Either of the following, as appropriate:

(A)“No proceeding is now being or has been conducted in California for administration of the decedent’s estate.”

(B)“The decedent’s personal representative has consented in writing to use of the procedure provided by this chapter.”

(8)“Funeral expenses, expenses of last illness, and all unsecured debts of the decedent have been paid.”

(9)“The affiant is the successor of the decedent (as defined in Section 13006 of the Probate Code) and to the decedent’s interest in the described

property, and no other person has a superior right to the interest of the decedent in the described property.”

(10)“The affiant declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”

(b)For each person executing the affidavit, the affidavit shall contain a notary public’s certificate of acknowledgment identifying the person.

(c)An inventory and appraisal of the decedent’s real property in this state, excluding the real property described in Section 13050, shall be attached to the affidavit. The inventory and appraisal of the real property shall be made as provided in Part 3 (commencing with Section 8800) of Division 7. The appraisal shall be made by a

probate referee selected by the affiant from those probate referees appointed by the Controller under Section 400 to appraise property in the county where the real property is located.

(d)If the affiant claims under the decedent’s will and no estate proceeding is pending or has been conducted in California, a copy of the will shall be attached to the affidavit.

(e)A certified copy of the decedent’s death certificate shall be attached to the affidavit. If the decedent’s personal representative has consented to the use of the procedure provided by this chapter, a copy of the consent and of the personal representative’s letters shall be attached to the affidavit.

(f)If the decedent dies on or after April 1, 2022, the list

of adjusted dollar amounts, published in accordance with subdivision (c) of Section 890, in effect on the date of the decedent’s death shall be attached to the affidavit.

(g)The affiant shall deliver pursuant to Section 1215 a copy of the affidavit and attachments to any person identified in paragraph

(4)of subdivision (a).

(h)(1) When the decedent dies prior to April 1, 2022, the dollar amount for paragraph (5) of subdivision (a) is fifty-five thousand four hundred twenty-five dollars ($55,425).

(2)When the decedent dies on or after April 1, 2022, the dollar amount for paragraph (5) of subdivision (a) is the adjusted dollar amount, published in accordance with subdivision (c) of Section 890, in effect on the date of the decedent’s death.

§ 13201

Amended by Stats. 2005, Ch. 75, Sec. 150. Effective July 19, 2005. Operative January 1, 2006, by Sec. 156 of Ch. 75.

Notwithstanding any other provision of law, the total fee for the filing of an affidavit under Section 13200 and the issuance of one certified copy of the affidavit under Section 13202 is as provided in subdivision (b) of Section 70626 of the Government Code.

§ 13202

Enacted by Stats. 1990, Ch. 79.

Upon receipt of the affidavit and the required fee, the court clerk, upon determining that the affidavit is complete and has the required attachments, shall file the affidavit and attachments and shall issue a certified copy of the affidavit without the attachments. The certified copy shall be recorded in the office of the county recorder of the county where the real property is located. The county recorder shall index the certified copy in the index of grantors and grantees. The decedent shall be indexed as the grantor and each person designated as a successor to the property in the certified copy shall be indexed as a grantee.

§ 13202.5

Added by Stats. 2022, Ch. 29, Sec. 14. (AB 1716) Effective January 1, 2023.

For the purposes of this chapter, the following terms have the following meanings:

(a)“Transferee” means a person designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202.

(b)“Transferred property” means property transferred to a transferee pursuant to a certified copy of an affidavit issued under Section 13202.

(c)“Unsecured debts” includes, but is not limited to, a decedent’s funeral expenses, expenses of a decedent’s last illness, and wage claims.

§ 13203

Enacted by Stats. 1990, Ch. 79.

(a)A person acting in good faith and for a valuable consideration with a person designated as a successor of the decedent to a particular item of property in a certified copy of an affidavit issued under Section 13202 and recorded in the county in which the real property is located has the same rights and protections as the person would have if each person designated as a successor in the recorded certified copy of the affidavit had been named as a distributee of the real property in an order for distribution that had become final.

(b)The issuance and recording of a certified copy of an affidavit under this chapter does not preclude later proceedings for administration of the decedent’s estate.

§ 13204

Amended by Stats. 2022, Ch. 29, Sec. 15. (AB 1716) Effective January 1, 2023.

(a)A transferee is personally liable to the extent provided in this section for the unsecured debts of the decedent. That debt may be enforced against the transferee in the same manner as it could have been enforced against the decedent if the decedent had not died. In any action based upon the debt, the transferee may assert any defense, cross-complaint, or setoff that would have been available to the decedent if the decedent had not died. Nothing in this section permits enforcement of a claim that is barred under Part 4 (commencing with Section 9000) of Division 7. Section 366.2 of the Code of Civil Procedure applies in an action under this section.

(b)The personal liability under subdivision (a) shall not exceed the fair market value of the transferred property at the time of the issuance of the certified copy of the affidavit under Section 13202, less the amount of any liens and encumbrances on the transferred property at that time, and less the amount of any payment made pursuant to subdivision (a) of Section 13205.

(c)The transferee is not liable under this section if the transferee has satisfied the requirements of Section 13204.5, 13205.5, or 13206.

§ 13204.5

Added by Stats. 2022, Ch. 29, Sec. 16. (AB 1716) Effective January 1, 2023.

(a)If proceedings for the administration of the decedent’s estate are commenced, a transferee is personally liable to the estate for a share of the decedent’s unsecured debts.

(b)In calculating the transferee’s share of liability under subdivision (a), the abatement rules provided in Part 4 (commencing with Section 21400) of Division 11 shall be applied, using all of the following assumptions:

(1)Transferred property under this chapter shall be treated as if it had remained in the estate for administration.

(2)Any unsecured debts of the

decedent that were paid by the transferee pursuant to Section 13204 shall be treated as if they were claims made against the decedent’s estate.

(c)The personal representative shall provide a written statement of liability to the transferee, which specifies the amount that must be paid to the estate.

(d)The transferee is personally liable to the estate for the amount specified in the statement of liability. Any amount that the transferee paid pursuant to Section 13204 or 13205 shall be credited against the amount that the transferee owes the estate under this subdivision. If the amount that the transferee paid pursuant to Section 13204 or 13205 exceeds the amount specified in the written statement of liability, the estate shall reimburse the difference to the transferee. For the

purposes of Section 11420, that reimbursement shall be deemed an expense of administration.

(e)The reasonable cost of proceeding under this section shall be reimbursed as an extraordinary service under Sections 10801 and 10811. The transferee is liable for the payment of that cost, which shall be separately identified in the statement of liability.

(f)The transferee is not liable under this section if the transferee has satisfied the requirements of Section 13205.5 or 13206.

§ 13205

Amended by Stats. 2022, Ch. 29, Sec. 17. (AB 1716) Effective January 1, 2023.

(a)A transferee is personally liable to any person having a superior right to transferred property by testate or intestate succession from the decedent. Except as provided in subdivision (d), the personal liability established by this subdivision shall not exceed the sum of the following, less the amount of any payment made pursuant to Section 13204 or 13204.5:

(1)The fair market value at the time of the issuance of the certified copy of the affidavit under Section 13202 of the transferred property, less the amount of any liens and

encumbrances on the transferred property at that time.

(2)Income received from the property, if that income would have accrued to the estate had the property not been transferred to the transferee.

(3)If the property has been disposed of, interest on the fair market value of the transferred property from the date of disposition at the rate of 7 percent per annum. For the purposes of this paragraph, “fair market value of the transferred property” means the fair market value of the transferred property, determined as of the time of the disposition of the property, less the amount of any liens and encumbrances on the property at the time the certified copy of the affidavit was issued.

(b)In addition to any other

liability the transferee has under this section and Sections 13204, 13204.5, 13206, and 13208, if the transferee fraudulently executed or filed the affidavit under this chapter, the transferee is liable to the person having a superior right to that property by testate or intestate succession from the decedent for three times the fair market value of the transferred property. For the purposes of this subdivision, the “fair market value of the transferred property” is the fair market value of the transferred property determined as of the time the certified copy of the affidavit was issued under Section 13202, less any liens and encumbrances on the transferred property at that time.

(c)An action to impose liability under this section is forever barred three years after the certified copy of the affidavit is issued under Section

13202, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.

(d)The transferee is not liable under this section if the transferee has satisfied the requirements of Section 13205.5 or 13206.

§ 13205.5

Added by Stats. 2022, Ch. 29, Sec. 18. (AB 1716) Effective January 1, 2023.

(a)If proceedings for the administration of the decedent’s estate are commenced, a transferee may voluntarily return transferred property to the decedent’s estate for administration.

(b)The property to be restored to the estate under this section shall be reduced or increased as provided in Section 13208.5.

§ 13206

Repealed and added by Stats. 2022, Ch. 29, Sec. 20. (AB 1716) Effective January 1, 2023.

(a)If property is transferred to a transferee under this chapter, and the decedent’s personal representative later determines that another person has a superior right to the property by testate or intestate succession from the decedent, the personal representative may request that the transferred property be restored to the estate. Subject to subdivisions (b), (c), (d), (e), and (g) if the personal representative makes that request, the transferee is liable for all of the following:

(1)If the transferee still has the transferred property, restitution of the transferred property to the decedent’s estate.

(2)If the transferee no longer has the transferred property, restitution to the decedent’s estate of the fair market value of the transferred property plus interest from the date of disposition at the rate of 7 percent per annum on the fair market value of the transferred property. For the purposes of this paragraph, the “fair market value of the transferred property” is the fair market value of the transferred property, determined as of the time of the disposition of the transferred property, less the amount of any liens and encumbrances on the transferred property at the time the certified copy of the affidavit was issued.

(b)Subject to subdivision (d), if the transferee fraudulently executed or filed the affidavit under this chapter, the transferee is liable under this section for restitution of three times the fair market value

of the transferred property. For the purposes of this subdivision, the “fair market value of the transferred property” is the fair market value of the transferred property, determined as of

the time the certified copy of the affidavit was issued, less the amount of any liens and encumbrances on the property at that time. Restitution provided under this subdivision shall first be used to pay the estate’s cost of proceeding under this section, with the remainder paid to the person who has a superior right to the property by testate or intestate succession.

(c)Subject to subdivision (d), if the transferee made a significant improvement to the transferred property in the good faith belief that the transferee was the successor of the decedent to that property, the transferee is liable for whichever of the following the decedent’s estate elects:

(1)The restitution of the transferred property to the estate of the decedent.

(2)The restoration to the decedent’s estate of the fair market value of the transferred property, determined as of the time of the issuance of the certified copy of the affidavit under Section 13202, less the amount of any liens and encumbrances on the transferred property at that time, together with interest on the net amount at the rate of 7 percent per annum running from the date of the issuance of the certified copy of the affidavit.

(d)The property and amount required to be restored to the estate under this section shall be reduced or increased as provided in Section 13208.5.

(e)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent.

(f)An action to enforce the liability under this section is forever barred three years after the certified copy of the affidavit is issued under Section 13202, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.

(g)The transferee is not liable under subdivision (a) if the transferred property was returned to the estate under Section 13205.5.

§ 13208

Amended by Stats. 2022, Ch. 29, Sec. 22. (AB 1716) Effective January 1, 2023.

The remedies available under Sections 13204 to 13206, inclusive, are in addition to any remedies available by reason of any fraud or intentional wrongdoing.

§ 13208.5

Added by Stats. 2022, Ch. 29, Sec. 23. (AB 1716) Effective January 1, 2023.

(a)If the transferee’s action or inaction increased the value of property returned to the estate or decreased the estate’s obligations, the personal representative shall reimburse the transferee by the same amount. Actions or inaction that increase the value of returned property or decrease the estate’s obligations include, but are not necessarily limited to, the following actions:

(1)A payment toward an unsecured debt of the decedent.

(2)A payment toward a debt secured against the returned property.

(3)A significant improvement of the returned

property that increased the fair market value of the property.

(b)If the transferee’s action or inaction decreased the value of property returned to the estate or increased the estate’s obligations, the transferee is personally liable to the estate for that amount. Actions or inaction that decrease the value of the returned property or increase the estate’s obligations include, but are not necessarily limited to, the following actions or inaction:

(1)An action or inaction that resulted in a lien or encumbrance being recorded against the property.

(2)The receipt of income from the property, if that income would have accrued to the estate had the property not been transferred to the transferee.

(c)The personal representative shall provide the transferee a written statement of any reimbursement or liability under this section, along with a statement of the reasons for the reimbursement or liability.

(d)For the purposes of Section 11420, reimbursement of the transferee under subdivision (a) shall be deemed an expense of administration.

(e)In the event that the transferee and the personal representative cannot agree on the reimbursement or liability due under this section, the transferee or personal representative may petition the court for an order determining the amount of the reimbursement or liability. In making a decision under this subdivision, the court should consider the surrounding circumstances,

including whether the parties acted in good faith and whether a particular result would impose an unfair burden on the transferee or the estate.

§ 13209

Added by Stats. 2022, Ch. 29, Sec. 24. (AB 1716) Effective January 1, 2023.

If transferred property is returned to the estate under Sections 13205.5 or 13206, the value of that property shall be included in the total value of the estate, for all purposes.

§ 13210

Added by Stats. 1991, Ch. 1055, Sec. 52.

The procedure provided by this chapter may be used only if one of the following requirements is satisfied:

(a)No proceeding for the administration of the decedent’s estate is pending or has been conducted in this state.

(b)The decedent’s personal representative consents in writing to use of the procedure provided by this chapter.

§ 13211

Amended by Stats. 2022, Ch. 29, Sec. 25. (AB 1716) Effective January 1, 2023.

If the court finds that a person designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202 has acted reasonably and in good faith under the circumstances as known to the person, the court may, in its discretion, excuse the person from liability to pay interest, in whole or in part, under paragraph (2) of subdivision (a) of Section 13206 or paragraph (2) of subdivision (c) of Section 13206, if it would be equitable to do so.