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Richard, Attorney
Category: Estate Law
Satisfied Customers: 53708
Experience:  29 years of experience practicing law, including tax and estate planning.
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This is in reference to a will of a california resident. I

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This is in reference to a will of a california resident. I am listed as successor executor. My wife is listed primary, but she does not wish to perform those duties. It is her sister who passed away yesterday. The small estate is under $150,000 so I believe probate is not necessary. My question is this: How and where do I obtain authority to act as executor? Does an attorney and/or a court need to be involved. Thank you.
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.

Good afternoon. Since the estate is under $150,000, you need not go through the formal probate process. Rather, you can handle the estate by Small Estate Affidavit. You will want your wife to sign an Affidavit that she elects not to serve as executor and then you need only prepare and sign a Small Estate Affidavit to allow you to access the assets of the estate, open an estate account, pay the bills of the estate, and then distribute any remaining assets pursuant to the will itself. I have provided you a copy of the Small Estate Affidavit for California below...(or you can access it directly at: ..

Affidavit for Collection of Personal Property
California Probate Code Section 13100
The undersigned state(s) as follows:
1. _______________________________________ died on ___________, 20____, in the County of
_____________________________, State of California.
2. 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.
3. □ No proceeding is now being or has been conducted in California for administration of the decedent's
□ 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.
4. 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 fifty
thousand dollars ($150,000).
5. □ An inventory and appraisal of the real property included in the decedent’s estate is attached.
□ There is no real property in the estate.
6. The following property to be transferred, delivered, or paid to the affiant under the provisions of California
Probate Code section 13100:
7. The successor(s) of the decedent, as defined in Probate Code Section 13006 is/are:
8. The undersigned
□ 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.
□ 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.
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.
Dated: ___________________
_________________________________________ ACKNOWLEDGMENT
State of California
County of _____________________________)
On _________________________ before me, _________________________________________
(insert name and title of the officer)
personally appeared ______________________________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature ______________________________

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Customer: replied 3 years ago.
Thank you
I am puzzled about having to wait 40 days from the decedent's death. She just died yesterday.
You're welcome. It's simply an arbitrary period under California law. It's for the purpose of providing a reasonable time for a probate petition to be filed so that someone relying upon the affidavit can know there are no other persons entitled to act on behalf of the estate.
Just to add further insight...this 40 day waiting period also provides the beneficiaries the opportunity to collect the decedent's bills...the 40 days reflects that the billing cycle is often 30 days. The beneficiary of the decedent's estate is liable for the decedent's outstanding debts up to the value of the transferred property under California Prob §§ 13109, it's important to know the debts before making distributions.
Customer: replied 3 years ago.
Thanks again, but there is no probate petition involved which was the gist of my question. I'm no trying to belabor this, but this is such a simple estate, that 40 days seems too much to require. Is that time period flexible?
You're welcome and I understand and don't disagree...but the 40 days is statutory. I have provided you the specific statute below:

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."
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