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Enforcing a California Small Estate Affidavit (CA Probate Code section 13105)

I previously described how it is sometimes possible – at least in California – to handle a deceased person’s estate informally without the need to go to court, hire lawyers, etc. In California, this is often referred to as the Small Estate Affidavit process. I even made a video about it on my Youtube channel. While you’re at it, throw me a subscribe if you wouldn’t mind.

The Small Estate Affidavit process in California is only available if the deceased person’s estate meets various criteria. I’m not going to go over every single criteria, but the two big ones are: (1) the gross value of the estate has to be less than $150,000, and (2) at least 40 calendar days has to have elapsed since the person passed away.

If you’re looking for the language of the affidavit, I’d recommend you check out Section 13101 of the California Probate Code for a start.

However, let’s say that you’ve met all the criteria to do the Small Estate Affidavit process in California (e.g. the estate is definitely worth less than $150,000 and 40 calendar days definitely have passed), but the person or business you’re trying to use the Affidavit at won’t honor it. What then?

The answer to that question is in Section 13105 of the California Probate Code which provides that the person presenting the Affidavit is entitled to whatever property or items he or she is seeking as long as the person has met the requirements contained in Sections 13100 to 13104 of the California Probate Code. Sections 13100 to 13104 are fairly straightforward and include requirements like using the correct language for the Affidavit (see Section 13101) and presenting identification if asked (see Section 13104). If criteria like these are met, then Section 13105(a)(1) says that the person presenting the Affidavit is required to hand over the property or items in question.

In the event that that Section 13105(a)(1)’s explicit language is not enough, Section 13105(b) says that the person presenting the Affidavit is entitled to file a lawsuit to compel the person holding the item or property to hand it over.

If you’re the person holding the property or items in question, what you’re probably going to be interested in is that Section 13105 says that if such a lawsuit is filed against you and the court finds that you have withheld the property or items unreasonably, then you’re on the hook for the plaintiff’s attorney’s fees and costs. The important thing to remember for that is that these attorney’s fees and costs are mandatory. Section 13105 explicitly says “the court shall award reasonable attorney’s fees to the person or persons bringing the action”. In other words, the court must award them.

As always, this post is not meant to be an exhaustive recitation or discussion of this area of the law. This post is meant as information only and is not legal advice. The best source of advice regarding the situation you find yourself in is to find a lawyer to get your questions answered.

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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