CHAPTER 3. Affidavit Procedure for Collection or Transfer of Personal Property [13100 - 13117]
( Chapter 3 enacted by Stats. 1990, Ch. 79. )
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 sixty-six thousand two hundred fifty dollars ($166,250), as adjusted periodically in accordance with Section 890, 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.
(Amended by Stats. 2019, Ch. 122, Sec. 5. (AB 473) Effective January 1, 2020.)
The following definitions apply for the purposes of this chapter:
(a) “Transferee” means a person to whom payment, delivery, or transfer of property is made under this chapter.
(b) “Transferred property” means property that is paid, delivered, or transferred pursuant to an affidavit or declaration executed under Section 13101.
(c) “Unsecured debts” includes, but is not limited to, a decedent’s funeral expenses, expenses of a decedent’s last illness, and wage claims.
(Added by Stats. 2022, Ch. 29, Sec. 2. (AB 1716) Effective January 1, 2023.)
(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 [Insert dollar amount specified in subdivision (g) of Section 13101 of the California
Probate Code].”
(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.
(f) If the decedent dies on or after April 1, 2022, the list of adjusted dollar amounts, published in accordance with subdivision (c) of Section 890, in effect on the date of the decedent’s death, shall be attached to the affidavit or declaration.
(g) (1) If the decedent dies prior to April 1, 2022, the dollar amount for paragraph (5) of subdivision (a) is one hundred sixty-six thousand two hundred fifty dollars ($166,250).
(2) If the decedent dies on or after April 1, 2022, the dollar amount for paragraph (5) of subdivision (a) is the adjusted dollar amount, published in accordance
with subdivision (c) of Section 890, in effect on the date of the decedent’s death.
(Amended by Stats. 2019, Ch. 122, Sec. 6. (AB 473) Effective January 1, 2020.)
(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.
(Enacted by Stats. 1990, Ch. 79.)
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.
(Enacted by Stats. 1990, Ch. 79.)
(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.
(Enacted by Stats. 1990, Ch. 79.)
(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).
(Enacted by Stats. 1990, Ch. 79.)
(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.
(Enacted by Stats. 1990, Ch. 79.)
(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.
(Enacted by Stats. 1990, Ch. 79.)
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.
(Enacted by Stats. 1990, Ch. 79.)
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.
(Amended by Stats. 1992, Ch. 178, Sec. 39. Effective January 1, 1993.)
(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.
(Amended by Stats. 1991, Ch. 1055, Sec. 38.)
(a) A transferee is personally liable, to the extent provided in this section for the unsecured debts of the decedent. That
debt may be enforced against the transferee 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 transferee may assert any defense, cross-complaint, or setoff 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.
(b) The personal liability under subdivision (a) shall not exceed the fair market value of the transferred property at the time the affidavit or declaration is presented under this chapter, less the amount of any liens and encumbrances on the transferred property at that time, and less the amount
of any payment made pursuant to subdivision (a) of Section 13110.
(c) A transferee is not liable under this section if the transferee has satisfied the requirements of Section 13109.5, 13110.5, or 13111.
(Amended by Stats. 2022, Ch. 29, Sec. 3. (AB 1716) Effective January 1, 2023.)
(a) If proceedings for the administration of the decedent’s estate are commenced, a transferee is personally liable to the estate for a share of the decedent’s unsecured debts.
(b) In calculating the transferee’s share of liability under subdivision (a), the abatement rules provided in Part 4 (commencing with Section 21400) of Division 11 shall be applied, using all of the following assumptions:
(1) Transferred property shall be treated as if it had remained in the estate for administration.
(2) Any unsecured debts of the decedent that were paid by
the transferee pursuant to Section 13109 shall be treated as if they
were claims made against the decedent’s estate.
(c) The personal representative shall provide a written statement of liability to the transferee, which specifies the amount that must be paid to the estate.
(d) The transferee is personally liable to the estate for the amount specified in the statement of liability. Any amount that the transferee paid pursuant to Section 13109 or 13110 shall be credited against the amount that the transferee owes the estate under this subdivision. If the amount that the transferee paid pursuant to Section 13109 or 13110 exceeds the amount specified in the written statement of liability, the estate shall reimburse the difference to the transferee. For the purposes of Section 11420, that reimbursement shall be deemed an expense of
administration.
(e) The reasonable cost of proceeding under this section shall be reimbursed as an extraordinary service under Sections 10801 and 10811. The transferee is liable for the payment of that cost, which shall be separately identified in the statement of liability.
(f) A transferee is not liable under this section if the transferee has satisfied the requirements of Section 13110.5 or 13111.
(Added by Stats. 2022, Ch. 29, Sec. 4. (AB 1716) Effective January 1, 2023.)
(a) Except as provided in subdivision (b), a transferee is personally liable to any person having a superior right to the transferred property by testate or intestate succession from the decedent. Except as provided in subdivision (b), the personal liability established by this subdivision shall not exceed the sum of the following, less the amount of any payment made pursuant to Section 13109 or 13109.5:
(1) The fair market value of the transferred property at the time the affidavit or declaration is presented under this chapter, less the amount of any liens and encumbrances on the transferred property at that time.
(2) Income received from the property, if that income would have accrued to the estate had the property not been transferred to the transferee.
(3) If the property has been disposed of, interest on the fair market value of the transferred property from the date of disposition at the rate of 7 percent per annum. For the purposes of this paragraph, “fair market value of the transferred property” means the fair market value of the transferred property, determined as of the time of the disposition of the property, less the amount of any liens and encumbrances on the property at the time the property was paid, delivered, or transferred to the transferee.
(b) In addition to any other liability the transferee has under this
section and Sections 13109,
13109.5, 13111, and 13113.5 a person who fraudulently secures the payment, delivery, or transfer of the decedent’s property under this chapter is liable to the person having a superior right to that property by testate or intestate succession from the decedent 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.
(d) A transferee is not liable under subdivision (a) if the transferee has satisfied the requirements of Section 13110.5 or 13111.
(Amended by Stats. 2022, Ch. 29, Sec. 5. (AB 1716) Effective January 1, 2023.)
(a) If proceedings for the administration of a decedent’s estate are commenced, a transferee may voluntarily return transferred property to the decedent’s estate for administration.
(b) The property to be restored to the estate under this section shall be reduced or increased as provided in Section 13113.5.
(Added by Stats. 2022, Ch. 29, Sec. 6. (AB 1716) Effective January 1, 2023.)
(a) If property is paid, delivered, or transferred to a transferee under this chapter, and the decedent’s personal representative determines that another person has a superior right to the property by testate or intestate succession from the decedent, the personal representative may request that the transferred property be restored to the estate. Subject to subdivisions (b), (c), (d), (e), and (g) if the personal representative makes that request, the transferee is liable for all of the following:
(1) If the transferee still has the transferred property, restitution of the transferred property to the decedent’s estate.
(2) If the transferee no longer has the transferred property,
restitution to the decedent’s estate of the fair market value of the transferred property plus interest from the date of disposition at the rate of 7 percent per annum on the fair market value of the transferred property. For the purposes of this paragraph, the “fair market value of the transferred property” is the fair market value of the transferred property, determined as of the time of the disposition of the transferred property, less the amount of any liens and encumbrances on the transferred property at the time the property was paid, delivered, or transferred to the person under this chapter.
(b) Subject to subdivision (c) and subject to any additional liability the transferee has under Sections 13109 to 13113.5, inclusive, if the transferee fraudulently secured the payment, delivery, or transfer of the decedent’s
property under this chapter, the transferee is liable under this section for restitution of three times the fair market value of the transferred property. For the purposes of this subdivision, the “fair market value of the transferred property” is the fair market value of the transferred property, determined as of the time the person liable under this subdivision presents the affidavit or declaration under this chapter, less the amount of any liens and encumbrances on the property at that time. Restitution provided under this subdivision shall first be used to pay the estate’s cost of proceeding under this section, with the remainder paid to the person who has a superior right to the property by testate or intestate succession.
(c) The property and amount required to be restored to the estate under this section shall be reduced or increased
as provided in Section 13113.5.
(d) An action to enforce the liability under this section may be brought only by the personal representative of the estate 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.
(g) A transferee is not liable under subdivision (a) if the transferred property was returned to the estate under Section 13110.5.
(Repealed and added by Stats. 2022, Ch. 29, Sec. 8. (AB 1716) Effective January 1, 2023.)
The remedies available under Sections 13109 to 13111, inclusive, are in addition to any remedies available by reason of any fraud or intentional wrongdoing.
(Amended by Stats. 2022, Ch. 29, Sec. 10. (AB 1716) Effective January 1, 2023.)
(a) If the transferee’s action or inaction increased the value of property returned to the estate or decreased the estate’s obligations, the personal representative shall reimburse the transferee by the same amount. Actions or inaction that increase the value of returned property or decrease the estate’s obligations include, but are not necessarily limited to, the following actions:
(1) A payment toward an unsecured debt of the decedent.
(2) A payment toward a debt secured against the returned property.
(3) A significant improvement of the
returned property that increased the fair market value of the property.
(b) If the transferee’s action or inaction decreased the value of property returned to the estate or increased the estate’s obligations, the transferee is personally liable to the estate for that amount. Actions or inaction that decrease the value of the returned property or increase the estate’s obligations include, but are not necessarily limited to, the following actions or inaction:
(1) An action or inaction that resulted in a lien or encumbrance being recorded against the property.
(2) The receipt of income from the property, if that income would have accrued to the estate had the property not been transferred to the transferee.
(c) The personal representative shall provide the transferee a written statement of any reimbursement or liability under this section, along with a statement of the reasons for the reimbursement or liability.
(d) For the purposes of Section 11420, reimbursement of the transferee under subdivision (a) shall be deemed an expense of administration.
(e) In the event that the transferee and the personal representative cannot agree on the reimbursement or liability due under this section, the transferee or personal representative may petition the court for an order determining the amount of the reimbursement or liability. In making a decision under this subdivision, the court should consider the surrounding circumstances,
including whether the parties acted in good faith and whether a particular result would impose an unfair burden on the transferee or the estate.
(Added by Stats. 2022, Ch. 29, Sec. 11. (AB 1716) Effective January 1, 2023.)
(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.
(Enacted by Stats. 1990, Ch. 79.)
If transferred property is returned to the estate under Sections 13110.5 or 13111, the value of that property shall be included in the total value of the estate, for all purposes.
(Added by Stats. 2022, Ch. 29, Sec. 12. (AB 1716) Effective January 1, 2023.)
The procedure provided in this chapter may not be used to obtain possession or the transfer of real property.
(Enacted by Stats. 1990, Ch. 79.)
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.
(Enacted by Stats. 1990, Ch. 79.)
If the court finds that a person to whom payment, delivery, or transfer of the decedent’s property has been made under this chapter has acted reasonably and in good faith under the circumstances as known to the person, the court may, in its discretion, excuse the person from liability to pay interest, in whole or in part, under paragraph (2) of subdivision (a) of Section 13111, if it would be equitable to do so.
(Amended by Stats. 2022, Ch. 29, Sec. 13. (AB 1716) Effective January 1, 2023.)