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California Probate Code 13100 UPDATE

You may have already heard that California probate code sections 13100 and the sections thereafter are going to be updated for 2012.  The law has been set at $100,000 for California “small” estates since 1996. Before that it had been $60,000. The new law will raise the bar to $150,000 that can be transferred after death without a full probate. It should be noted that just because a formal probate is not required does not mean that a living trust may be a better, cleaner and more efficient option for many.  However, if your loved one has died without a properly funded living trust in place this revision to the law should help out people with modest estates. In some cases it may be wise to do nothing until January 1, 2012 when the new law comes into play.  We can help with California small estate affidavits and other documents that financial institutions may require such as an affidavit of domicile. Our fees are very reasonable for these services like all of our services.   I have pasted below the California legislative history for California Assembly Bill 1305 (AB 1305) and also the current law.  You can change $100,000 to $150,000 in those sections.

Contact me to discuss your case and how we can help you!  -John

COMPLETE BILL HISTORY

BILL NUMBER  : A.B. No. 1305
AUTHOR : Huber
TOPIC : Decedents’ estates: smaller estates.

TYPE OF BILL :
Inactive
Non-Urgency
Non-Appropriations
Majority Vote Required
Non-State-Mandated Local Program
Non-Fiscal
Non-Tax Levy

BILL HISTORY
2011
July 25 Chaptered by Secretary of State – Chapter 117, Statutes of 2011.
July 25 Approved by the Governor.
July 11 Enrolled and presented to the Governor at 12:45 p.m.
July 1 Senate amendments concurred in. To Engrossing and Enrolling. (Ayes
62. Noes  0. Page 2158.).
June 27 In Assembly.  Concurrence in Senate amendments pending.  May be
considered on or after June  29 pursuant to Assembly Rule 77.
June 27 Read third time. Passed. Ordered to the Assembly. (Ayes 37. Noes  0.
Page 1573.).
June 22 Ordered to special consent calendar.
June 8 Read second time. Ordered to third reading.
June 7 From committee:  Do pass. (Ayes  5. Noes  0.) (June  7).
May 31 From committee chair, with author’s amendments:  Amend, and re-refer
to committee.  Read second time, amended, and re-referred to Com. on
JUD.
Apr. 25 Referred to Com. on  JUD.
Apr. 11 In Senate.  Read first time.  To Com. on RLS. for assignment.
Apr. 11 Read third time. Passed. Ordered to the Senate. (Ayes 74. Noes  0.
Page 910.)
Apr. 6 Read second time. Ordered to consent calendar.
Apr. 5 From committee: Do pass. To consent calendar. (Ayes 10. Noes  0.)
(April  5).
Mar. 21 Referred to Com. on  JUD.
Feb. 20 From printer.  May be heard in committee  March  22.
Feb. 18 Read first time.  To print.

13100.  Excluding the property described in Section 13050, if the
gross value of the decedent’s real and personal property in this
state does not exceed one hundred thousand dollars ($100,000) and if
40 days have elapsed since the death of the decedent, the successor
of the decedent may, without procuring letters of administration or
awaiting probate of the will, do any of the following with respect to
one or more particular items of property:
(a) Collect any particular item of property that is money due the
decedent.
(b) Receive any particular item of property that is tangible
personal property of the decedent.
(c) Have any particular item of property that is evidence of a
debt, obligation, interest, right, security, or chose in action
belonging to the decedent transferred, whether or not secured by a
lien on real property.

13101.  (a) To collect money, receive tangible personal property, or
have evidences of a debt, obligation, interest, right, security, or
chose in action transferred under this chapter, an affidavit or a
declaration under penalty of perjury under the laws of this state
shall be furnished to the holder of the decedent’s property stating
all of the following:
(1) The decedent’s name.
(2) The date and place of the decedent’s death.
(3) “At least 40 days have elapsed since the death of the
decedent, as shown in a certified copy of the decedent’s death
certificate attached to this affidavit or declaration.”
(4) 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 the payment, transfer, or delivery to the affiant or
declarant of the property described in the affidavit or declaration.”
(5) “The current gross fair market value of the decedent’s real
and personal property in California, excluding the property described
in Section 13050 of the California Probate Code, does not exceed one
hundred thousand dollars ($100,000).”
(6) A description of the property of the decedent that is to be
paid, transferred, or delivered to the affiant or declarant.
(7) The name of the successor of the decedent (as defined in
Section 13006 of the California Probate Code) to the described
property.
(8) Either of the following, as appropriate:
(A) “The affiant or declarant is the successor of the decedent (as
defined in Section 13006 of the California Probate Code) to the
decedent’s interest in the described property.”
(B) “The affiant or declarant is authorized under Section 13051 of
the California Probate Code to act on behalf of the successor of the
decedent (as defined in Section 13006 of the California Probate
Code) with respect to the decedent’s interest in the described
property.”
(9) “No other person has a superior right to the interest of the
decedent in the described property.”
(10) “The affiant or declarant requests that the described
property be paid, delivered, or transferred to the affiant or
declarant.”
(11) “The affiant or declarant affirms or declares under penalty
of perjury under the laws of the State of California that the
foregoing is true and correct.”
(b) Where more than one person executes the affidavit or
declaration under this section, the statements required by
subdivision (a) shall be modified as appropriate to reflect that
fact.
(c) If the particular item of property to be transferred under
this chapter is a debt or other obligation secured by a lien on real
property and the instrument creating the lien has been recorded in
the office of the county recorder of the county where the real
property is located, the affidavit or declaration shall satisfy the
requirements both of this section and of Section 13106.5.
(d) A certified copy of the decedent’s death certificate shall be
attached to the affidavit or declaration.
(e) If the decedent’s personal representative has consented to the
payment, transfer, or delivery of the described property to the
affiant or declarant, a copy of the consent and of the personal
representative’s letters shall be attached to the affidavit or
declaration.

13102.  (a) If the decedent had evidence of ownership of the
property described in the affidavit or declaration and the holder of
the property would have had the right to require presentation of the
evidence of ownership before the duty of the holder to pay, deliver,
or transfer the property to the decedent would have arisen, the
evidence of ownership, if available, shall be presented with the
affidavit or declaration to the holder of the decedent’s property.
(b) If the evidence of ownership is not presented to the holder
pursuant to subdivision (a), the holder may require, as a condition
for the payment, delivery, or transfer of the property, that the
person presenting the affidavit or declaration provide the holder
with a bond or undertaking in a reasonable amount determined by the
holder to be sufficient to indemnify the holder against all
liability, claims, demands, loss, damages, costs, and expenses that
the holder may incur or suffer by reason of the payment, delivery, or
transfer of the property. Nothing in this subdivision precludes the
holder and the person presenting the affidavit or declaration from
dispensing with the requirement that a bond or undertaking be
provided and instead entering into an agreement satisfactory to the
holder concerning the duty of the person presenting the affidavit or
declaration to indemnify the holder.

13103.  If the estate of the decedent includes any real property in
this state, the affidavit or declaration shall be accompanied by an
inventory and appraisal of the real property. 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 or declarant from
those probate referees appointed by the Controller under Section 400
to appraise property in the county where the real property is
located.

13104.  (a) Reasonable proof of the identity of each person
executing the affidavit or declaration shall be provided to the
holder of the decedent’s property.
(b) Reasonable proof of identity is provided for the purposes of
this section if both of the following requirements are satisfied:
(1) The person executing the affidavit or declaration is
personally known to the holder.
(2) The person executes the affidavit or declaration in the
presence of the holder.
(c) If the affidavit or declaration is executed in the presence of
the holder, a written statement under penalty of perjury by a person
personally known to the holder affirming the identity of the person
executing the affidavit or declaration is reasonable proof of
identity for the purposes of this section.
(d) If the affidavit or declaration is executed in the presence of
the holder, the holder may reasonably rely on any of the following
as reasonable proof of identity for the purposes of this section:
(1) An identification card or driver’s license issued by the
Department of Motor Vehicles of this state that is current or was
issued during the preceding five years.
(2) A passport issued by the Department of State of the United
States that is current or was issued during the preceding five years.
(3) Any of the following documents if the document is current or
was issued during the preceding five years and contains a photograph
and description of the person named on it, is signed by the person,
and bears a serial or other identifying number:
(A) A passport issued by a foreign government that has been
stamped by the United States Immigration and Naturalization Service.
(B) A driver’s license issued by a state other than California.
(C) An identification card issued by a state other than
California.
(D) An identification card issued by any branch of the armed
forces of the United States.
(e) For the purposes of this section, a notary public’s
certificate of acknowledgment identifying the person executing the
affidavit or declaration is reasonable proof of identity of the
person executing the affidavit or declaration.
(f) Unless the affidavit or declaration contains a notary public’s
certificate of acknowledgment of the identity of the person, the
holder shall note on the affidavit or declaration either that the
person executing the affidavit or declaration is personally known or
a description of the identification provided by the person executing
the affidavit or declaration.

13105.  (a) If the requirements of Sections 13100 to 13104,
inclusive, are satisfied:
(1) The person or persons executing the affidavit or declaration
as successor of the decedent are entitled to have the property
described in the affidavit or declaration paid, delivered, or
transferred to them.
(2) A transfer agent of a security described in the affidavit or
declaration shall change the registered ownership on the books of the
corporation from the decedent to the person or persons executing the
affidavit or declaration as successor of the decedent.
(b) If the holder of the decedent’s property refuses to pay,
deliver, or transfer any personal property or evidence thereof to the
successor of the decedent within a reasonable time, the successor
may recover the property or compel its payment, delivery, or transfer
in an action brought for that purpose against the holder of the
property. If an action is brought against the holder under this
section, the court shall award reasonable attorney’s fees to the
person or persons bringing the action if the court finds that the
holder of the decedent’s property acted unreasonably in refusing to
pay, deliver, or transfer the property to them as required by
subdivision (a).

13106.  (a) If the requirements of Sections 13100 to 13104,
inclusive, are satisfied, receipt by the holder of the decedent’s
property of the affidavit or declaration constitutes sufficient
acquittance for the payment of money, delivery of property, or
changing registered ownership of property pursuant to this chapter
and discharges the holder from any further liability with respect to
the money or property. The holder may rely in good faith on the
statements in the affidavit or declaration and has no duty to inquire
into the truth of any statement in the affidavit or declaration.
(b) If the requirements of Sections 13100 to 13104, inclusive, are
satisfied, the holder of the decedent’s property is not liable for
any taxes due to this state by reason of paying money, delivering
property, or changing registered ownership of property pursuant to
this chapter.

13106.5.  (a) If the particular item of property transferred under
this chapter is a debt or other obligation secured by a lien on real
property and the instrument creating the lien has been recorded in
the office of the county recorder of the county where the real
property is located, the affidavit or declaration described in
Section 13101 shall be recorded in the office of the county recorder
of that county and, in addition to the contents required by Section
13101, shall include both of the following:
(1) The recording reference of the instrument creating the lien.
(2) A notary public’s certificate of acknowledgment identifying
each person executing the affidavit or declaration.
(b) The transfer under this chapter of the debt or obligation
secured by a lien on real property has the same effect as would be
given to an assignment of the right to collect the debt or enforce
the obligation. The recording of the affidavit or declaration under
subdivision (a) shall be given the same effect as is given under
Sections 2934 and 2935 of the Civil Code to recording an assignment
of a mortgage and an assignment of the beneficial interest under a
deed of trust.
(c) If a deed of trust upon the real property was given to secure
the debt and the requirements of subdivision (a) and of Sections
13100 to 13103, inclusive, are satisfied:
(1) The trustee under the deed of trust may rely in good faith on
the statements made in the affidavit or declaration and has no duty
to inquire into the truth of any statement in the affidavit or
declaration.
(2) A person acting in good faith and for a valuable consideration
may rely upon a recorded reconveyance of the trustee under the deed
of trust.
(d) If a mortgage upon the real property was given to secure the
debt and the requirements of subdivision (a) and of Sections 13100 to
13103, inclusive, are satisfied, a person acting in good faith and
for a valuable consideration may rely upon a recorded discharge of
the mortgage executed by the person or persons executing the
affidavit or declaration as successor of the decedent or by their
successors in interest.

13107.  Where the money or property claimed in an affidavit or
declaration presented under this chapter is that of a deceased heir
or devisee of a deceased person whose estate is being administered in
this state, the personal representative of the person whose estate
is being administered shall present the affidavit or declaration to
the court in which the estate is being administered. The court shall
direct the personal representative to pay the money or deliver the
property to the person or persons identified by the affidavit or
declaration as the successor of the decedent to the extent that the
order for distribution determines that the deceased heir or devisee
was entitled to the money or property under the will or the laws of
succession.

13107.5.  Where the money or property claimed in an affidavit or
declaration executed under this chapter is the subject of a pending
action or proceeding in which the decedent was a party, the successor
of the decedent shall, without procuring letters of administration
or awaiting probate of the will, be substituted as a party in place
of the decedent by making a motion under Article 3 (commencing with
Section 377.30) of Chapter 4 of Title 2 of Part 2 of the Code of
Civil Procedure. The successor of the decedent shall file the
affidavit or declaration with the court when the motion is made. For
the purpose of Article 3 (commencing with Section 377.30) of Chapter
4 of Title 2 of Part 2 of the Code of Civil Procedure, a successor of
the decedent who complies with this chapter shall be considered as a
successor in interest of the decedent.

13108.  (a) The procedure provided by this chapter may be used only
if one of the following requirements is satisfied:
(1) No proceeding for the administration of the decedent’s estate
is pending or has been conducted in this state.
(2) The decedent’s personal representative consents in writing to
the payment, transfer, or delivery of the property described in the
affidavit or declaration pursuant to this chapter.
(b) Payment, delivery, or transfer of a decedent’s property
pursuant to this chapter does not preclude later proceedings for
administration of the decedent’s estate.

13109.  A person to whom payment, delivery, or transfer of the
decedent’s property is made under this chapter is personally liable,
to the extent provided in Section 13112, for the unsecured debts of
the decedent. Any such debt may be enforced against the person 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
person may assert any defenses, cross-complaints, or setoffs 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.

13110.  (a) Except as provided in subdivision (b), each person to
whom payment, delivery, or transfer of the decedent’s property is
made under this chapter is personally liable to the extent provided
in Section 13112 to any person having a superior right by testate or
intestate succession from the decedent.
(b) In addition to any other liability the person has under this
section and Sections 13109, 13111, and 13112, any person who
fraudulently secures the payment, delivery, or transfer of the
decedent’s property under this chapter is liable to the person having
such a superior right for three times the fair market value of the
property. For the purposes of this subdivision, the “fair market
value of the property” is the fair market value of the property paid,
delivered, or transferred to the person liable under this
subdivision, valued as of the time the person liable under this
subdivision presents the affidavit or declaration under this chapter
to the holder of the decedent’s property, less any liens and
encumbrances on that property at that time.
(c) An action to impose liability under this section is forever
barred three years after the affidavit or declaration is presented
under this chapter to the holder of the decedent’s property, 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.

13111.  (a) Subject to the provisions of this section, if
proceedings for the administration of the decedent’s estate are
commenced in this state, or if the decedent’s personal representative
has consented to the payment, transfer, or delivery of the decedent’
s property under this chapter and the personal representative later
requests that the property be restored to the estate, each person to
whom payment, delivery, or transfer of the decedent’s property is
made under this chapter is liable for:
(1) The restitution of the property to the estate if the person
still has the property, together with (A) the net income the person
received from the property and (B) if the person encumbered the
property after it was delivered or transferred to the person, the
amount necessary to satisfy the balance of the encumbrance as of the
date the property is restored to the estate.
(2) The restitution to the estate of the fair market value of the
property if the person no longer has the property, together with (A)
the net income the person received from the property and (B) interest
on the fair market value of the property from the date of
disposition at the rate payable on a money judgment. For the purposes
of this subdivision, the “fair market value of the property” is the
fair market value, determined as of the time of the disposition of
the property, of the property paid, delivered, or transferred to the
person under this chapter, less any liens and encumbrances on the
property at that time.
(b) Subject to subdivision (c) and subject to any additional
liability the person has under Sections 13109 to 13112, inclusive, if
the person fraudulently secured the payment, delivery, or transfer
of the decedent’s property under this chapter, the person is liable
under this section for restitution to the decedent’s estate of three
times the fair market value of the property. For the purposes of this
subdivision, the “fair market value of the property” is the fair
market value, determined as of the time the person liable under this
subdivision presents the affidavit or declaration under this chapter,
of the property paid, delivered, or transferred to the person under
this chapter, less the amount of any liens and encumbrances on the
property at that time.
(c) The property and amount required to be restored to the estate
under this section shall be reduced by any property or amount paid by
the person to satisfy a liability under Section 13109 or 13110.
(d) An action to enforce the liability under this section may be
brought only by the personal representative of the estate of the
decedent. In an action to enforce the liability under this section,
the court’s judgment may enforce the liability only to the extent
necessary to protect the interests of the heirs, devisees, and
creditors of the decedent.
(e) An action to enforce the liability under this section is
forever barred three years after presentation of the affidavit or
declaration under this chapter to the holder of the decedent’s
property, 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.
(f) In the case of a nondomiciliary decedent, restitution under
this section shall be made to the estate in an ancillary
administration proceeding.

13112.  (a) A person to whom payment, delivery, or transfer of the
decedent’s property has been made under this chapter is not liable
under Section 13109 or 13110 if proceedings for the administration of
the decedent’s estate are commenced in this state, and the person
satisfies the requirements of Section 13111.
(b) Except as provided in subdivision (b) of Section 13110, the
aggregate of the personal liability of a person under Sections 13109
and 13110 shall not exceed the fair market value, valued as of the
time the affidavit or declaration is presented under this chapter, of
the property paid, delivered, or transferred to the person under
this chapter, less the amount of any liens and encumbrances on that
property at that time, together with the net income the person
received from the property and, if the property has been disposed of,
interest on the fair market value of the property accruing from the
date of disposition at the rate payable on a money judgment. For the
purposes of this subdivision, “fair market value of the property” has
the same meaning as defined in paragraph (2) of subdivision (a) of
Section 13111. |

13113.  The remedies available under Sections 13109 to 13112,
inclusive, are in addition to any remedies available by reason of any
fraud or intentional wrongdoing.

13114.  (a) A public administrator who has taken possession or
control of property of a decedent under Article 1 (commencing with
Section 7600) of Chapter 4 of Part 1 of Division 7 may refuse to pay
money or deliver property pursuant to this chapter if payment of the
costs and fees described in Section 7604 has not first been made or
adequately assured to the satisfaction of the public administrator.
(b) A coroner who has property found upon the body of a decedent,
or who has taken charge of property of the decedent pursuant to
Section 27491.3 of the Government Code, may refuse to pay or deliver
the property pursuant to this chapter if payment of the reasonable
costs of holding or safeguarding the property has not first been made
or adequately assured to the satisfaction of the coroner.

13115.  The procedure provided in this chapter may not be used to
obtain possession or the transfer of real property.

13116.  The procedure provided in this chapter is in addition to and
supplemental to any other procedure for (1) collecting money due to
a decedent, (2) receiving tangible personal property of a decedent,
or (3) having evidence of ownership of property of a decedent
transferred. Nothing in this chapter restricts or limits the release
of tangible personal property of a decedent pursuant to any other
provision of law. This section is declaratory of existing law.

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