Small Estate Affidavit - Transfer of a Deed of Trust

When a person passes away and they have a modest probate estate, for example $150,000 or less in gross assets, beneficiaries may collect the estate using a small estate affidavit. The figure of $150,000 is used because that is the threshold for determining whether or not an estate must be probated or not. For instance, if the decedent passed away with a probate estate worth $170,000, then probate would be required. Conversely, if the decedent passed away with a probate estate worth $120,000, then no probate would be required. Consequently, the small estate affidavit procedure can be used to collect the decedent's estate in such case.

Of note, California until recently had a probate threshold of only $100,000. This was only recently increased to $150,000 effective January 1, 2012.

Many people have inquired over the years if the affidavit has to be filed with the probate court. The short answer is no, the affidavit does not have to be filed with the court. Frankly, absent extreme circumstances, the affidavit will not be filed with the probate court. Although for the transfer of a beneficial interest in a deed of trust, the affidavit needs to be recorded. 

Probate Code §13106.5(a) requires that "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 and (2) A notary public’s certificate of acknowledgment identifying each person executing the affidavit or declaration.

The easiest way to obtain the information to complete the affidavit is to acquire a copy of the recorded deed of trust. Since a deed of trust is a recorded document, acquisition of such should not an obstacle. Websites such as datatree.com can be used to obtain these documents for a fee. I used datetree.com, formerly docedge.com, in the past to locate real property records and was please with their service  

A bizarre aspect of this law is that it asks for a notary's acknowledgement when notarizing the affidavit. Yet in California, the correct notarization for an affidavit is a jurat. Hence, when I had to draft an affidavit that transferred a beneficial interest in a deed of trust I was confused about the notarization aspect (I am also a notary). I opted to follow Probate Code §13106.5 because apparently the California legislature decided to alter the notarization requirement for this type of affidavit.