Hollister, CA asked in Probate for California

Q: Brother lived/died in Ca. Had bank accts in Ca<$166k & NJ about $90K +small IRA. Is small estate w/o admin only needed?

I am only sibling, he was never married/no children. Our parents died. No will. Will I qualify for Small Estate in Ca? Will NJ honor determination? Or will I need administration? Get it here or there? Do I have to travel to NJ?

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3 Lawyer Answers
John B. Palley
John B. Palley
Answered
  • Probate Lawyer
  • Roseville, CA
  • Licensed in California

A: I would say you need to total all the accounts that don't have named beneficiaries on them and see if total is under $166,250. If so, then the small estate affidavits should work. Usually, but not always, they will work regardless of where the banks are. However, some banks will require paperwork for their estate. I hope this answers your questions. -John

Genene N. Dunn
Genene N. Dunn
PREMIUM
Answered
  • Probate Lawyer
  • Tustin, CA
  • Licensed in California

A: I agree with Mr. Palley. The value should be calculated by all accounts your brother owned, not just ones in California. However, the small estate affidavit is a CA law and you might be hard pressed to get a bank in NJ to follow that law. There may be a different process for assets in NJ.

Shawna Murray
Shawna Murray
Answered
  • Probate Lawyer
  • Irvine, CA
  • Licensed in California

A: I am sorry for your loss. It can be difficult to figure out on your own whether you can use a simplified informal process to transfer property. Getting a personal consultation with a California lawyer is recommended after the death of a loved one. The California assets of residents who died with estates that have a value of $166,250 or less may qualify for a non-formal probate by preparing an Affidavit to Transfer Personal Property worth less than $166,250. You should note that if the bank accounts or the IRA have a beneficiary listed with the bank, then the proceeds would be payable directly to the beneficiary and these accounts do not get included in the calculation of $166,250. You can also exclude from the limit some other assets, such as vehicles, manufactured homes and joint tenancy property.

What you have described, two bank accounts and an IRA, appears to exceed the $166,250 and a probate will be required. All bank account balances, without beneficiary designations, are counted towards the maximum. Since beneficiary designations can reduce funds used in the $166,250 calculation, you just might be able to use the affidavit for the CA property if the NJ account and the IRA have a beneficiary.

If you are trying to split hairs to get around opening a formal probate, it might work but only if the NJ money is not in CA. Perhaps the NJ bank is a state bank (and not a national bank such as a Chase or Bank of America account). But you will have to read up on the NJ probate laws to figure out how to receive the funds in that account because the state bank in NJ probably won't accept your CA affidavit. You would need to consult a NJ lawyer for further information.

Its important to note that if you use the affidavit route in CA, you are personally liable for any unpaid, unsecured debts of the decedent for up to the amount of money that you receive. If you want to ensure that you will not be liable for debts on that money, then you need open a probate case in the county where your relative resided. Plus, it would be very likely that the NJ bank would cooperate and release the funds if you are in probate in CA. If you use a CA probate lawyer, you probably would not even need to go to court for the CA probate because the lawyer can take care of everything for you.

If you decide to use the affidavit to transfer the California personal property of the decedent, first, you will need to wait for 40 days after the death. Second, you need to use exact wording per the probate code in your affidavit and all heirs must sign it in front of notary. Third, you will remain liable for the debts.

Honestly, you should consult with a CA probate attorney whom you can give all the particulars before you proceed.

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