Can we skip probate for a small estate in California? The $208,850 limit

When a parent, spouse or sibling dies with a modest estate, the family often hears that everything must go through probate. In many cases it does not. Our estate planning page notes that California offers simplified procedures for smaller estates. This page sets out the three most used ones, the limits that apply now, what does not count toward them, and what to do first. The dollar limits are set by statute and adjusted by the Judicial Council every three years.

How does the small estate process work, step by step?

1. List what the person owned in California, and how each item was held. Joint accounts, accounts with a named beneficiary, trust assets and registered vehicles are treated differently from property in the person's name alone. If the person rented a home, the security deposit the landlord holds belongs on the list as well; our page on California's security deposit rules explains when a landlord must return it.
2. Take out the excluded property. Probate Code section 13050 lists what does not count toward the limit, as explained below.
3. Compare what is left with the limit for the date of death. Use the Judicial Council's list in effect on that date (Probate Code sections 13101(g) and 13200(h)).
4. Wait the required time. At least 40 days after the death for the personal property affidavit and the home petition, and at least six months for the real property affidavit.
5. Prepare the affidavit and its attachments. A certified copy of the death certificate and the Judicial Council's list of adjusted amounts must be attached (section 13101(d), (f)). The courts' self-help guide adds that if the person owned real property in California, an inventory and appraisal signed by a probate referee (form DE-160) must also be attached.
6. Give it to whoever holds the property, with proof of identity. The holder is entitled to reasonable proof of identity, such as a California driver's license or ID card or a U.S. passport that is current or was issued in the last five years (section 13104).
7. Follow up if the holder refuses. If a holder refuses to pay or transfer within a reasonable time, the successor may sue to compel it (section 13105(b)). When the amount is modest, our comparison of small claims court and hiring a lawyer in Los Angeles County explains where a money dispute of that size can be heard.

What are the current small estate limits?

For deaths between April 1, 2022 and March 31, 2025, the Judicial Council's list gives $184,500 for the personal property affidavit and $61,500 for the real property affidavit. The amounts are next due to change on April 1, 2028. Some court self-help pages still show the older figures, so use the list in effect on the date of death; the law requires that list to be attached to the affidavit (Probate Code sections 13101(f) and 13200(f)). The $750,000 home limit came from Assembly Bill 2016, which also limited that procedure to the person's primary residence in California, according to the Judicial Council.

What property does not count toward the limit?

Probate Code section 13050 leaves several kinds of property out when deciding whether an estate is small enough:

• property the person held in joint tenancy, or in which they had a life interest that ended at death;
• property in a trust the person could revoke during life, such as a living trust;
• property that passed to a surviving spouse under the spousal procedure in section 13500;
• bank accounts that pass to a surviving joint owner, a payable-on-death payee or a beneficiary;
• registered cars, boats and manufactured homes; and
• amounts owed for military service, and up to $20,875 of unpaid wages or other pay from employment (the 2025 adjusted amount for section 13050(c)).

Under section 13100, a home that is the subject of a petition under section 13151 is also left out of the $208,850 count. That is why an estate with a house held in a living trust, or a modest home going through the petition, and a few bank accounts with named beneficiaries can still qualify for the affidavit for what is left.

How does the small estate affidavit work?

The person entitled to the property signs an affidavit or declaration under penalty of perjury and gives it to whoever holds the property, such as a bank. Section 13101 lists what it must say, including the date and place of death, that at least 40 days have passed, that no probate case is pending (or the personal representative consented), the value statement, a description of the property, and that no one has a better right to it. A certified copy of the death certificate must be attached.

The California Courts self-help guide adds practical points: many banks and companies have their own affidavit form; notarization is not legally required, but many institutions ask for it; everyone else entitled to inherit the property must also sign; and if an institution insists on "letters," you can point it to Probate Code sections 13100 to 13106. Those sections give the holder a reason to cooperate: once the requirements are met, the affidavit discharges the holder from further liability, and the holder may rely in good faith on its statements (section 13106). If a holder unreasonably refuses and the successor has to sue, the court must award reasonable attorney's fees (section 13105(b)). For stock, section 13105(a)(2) requires the transfer agent to change the registered owner to the successor. If the person owned part of a small company, its buy-sell terms may also control what happens to that share; our business law page explains those agreements.

What about the house?

Real property needs a different procedure. If all of the person's California real property is worth $69,625 or less, an heir can file form DE-305 with the superior court in the county where the person lived, no sooner than six months after the death (section 13200). It must be notarized, include an inventory and appraisal by a probate referee, and state that funeral expenses, last illness expenses and all unsecured debts have been paid. If the heir claims under a will and no probate case exists, a copy of the will must be attached (section 13200(d)).

For a primary residence worth up to $750,000, an heir can petition the superior court for an order confirming the transfer, once 40 days have passed, and must deliver notice of the petition to each heir and devisee within five business days of filing (section 13151). In Glendale, that means the Los Angeles County Superior Court.

What changes the answer?

The date of death

The limits depend on when the person died, not on when the family acts. A death in March 2025 uses the $184,500 and $61,500 figures; a death in April 2025 or later uses $208,850 and $69,625.

Whether there is a surviving spouse

A surviving spouse may collect up to $20,875 of the deceased spouse's unpaid salary and vacation pay from employers without probate (Probate Code section 13600 and the Judicial Council list). Property that passes to the spouse under section 13500 is excluded from the small estate count. Without a will, the spouse receives the decedent's half of the community property and a share of separate property that depends on which children, parents or siblings survive (section 6401).

Whether there are minor children and a very small estate

When the net estate is small enough, a court may set the estate aside for the surviving spouse and minor children (section 6602). For deaths on or after April 1, 2025, the Judicial Council's list puts that limit at $107,900.

Whether a probate case has already been opened

The affidavit can be used only if no estate proceeding is pending, unless the personal representative consents in writing; the consent and the representative's letters must then be attached (section 13101(a)(4), (e)).

Whether the person had a claim pending

A claim the person could have brought, such as an injury claim, generally passes to the successor in interest, who may start or continue the case by filing a declaration under Code of Civil Procedure sections 377.30 and 377.32. Our page on wrongful death and survival claims in California explains how those claims work.

Whether the family agrees

Everyone entitled to the property must sign the affidavit, according to the self-help guide. When heirs disagree about who inherits, the simplified procedures stop being simple.

A worked example

For example, imagine a hypothetical widower who dies in Glendale in June 2025 without a will, leaving two adult children. His condo was held with his daughter as joint tenants. He also had a checking account with no beneficiary holding $48,000, a brokerage account worth $95,000, a car, and a last paycheck his employer still owes.

The condo passes outside the count because it was held in joint tenancy, the registered car is excluded, and the unpaid pay is excluded up to $20,875. That leaves $143,000 in the checking and brokerage accounts, under the $208,850 limit for a death after April 1, 2025. Forty days after the death, both children sign the bank's affidavit form, attach a certified death certificate and the Judicial Council's list, and bring their driver's licenses. If the brokerage firm asks for letters, they point it to sections 13100 to 13106. None of this settles how the condo's title is cleared or whether any debts are owed; it shows why the accounts may not need probate.

Common mistakes with small estates

• Using an old limit. Some self-help pages still show $184,500; the limit depends on the date of death.
• Counting property that is excluded. Joint tenancy, trust assets, beneficiary accounts and registered vehicles do not count.
• Acting before 40 days. The affidavit itself must state that at least 40 days have passed.
• Leaving out an heir. Every person entitled to the property must sign.
• Forgetting the attachments. The death certificate and the Judicial Council's list are required, and an inventory and appraisal is needed when the person owned California real property.
• Assuming the bank decides. A holder that receives a proper affidavit is protected when it pays, and it can be sued if it refuses unreasonably.

What to do this week

1. Order several certified copies of the death certificate.
2. Make a list of every account, property and vehicle, with how it was titled and whether it names a beneficiary.
3. Search for a will or trust, and check whether anyone has opened a probate case.
4. Print the Judicial Council's list of adjusted amounts in effect on the date of death.
5. Ask each bank or company whether it has its own affidavit form.
6. Write down the date that is 40 days after the death, and the date six months after it if there is real property.

Frequently asked questions

Does the small estate affidavit have to be notarized?

Not legally, according to the California Courts self-help guide, but many banks and companies ask for it. The real property affidavit filed with the court on form DE-305 must be notarized (section 13200(b)).

How much does a surviving spouse inherit if there was no will?

Under Probate Code section 6401, the spouse receives the decedent's half of the community property. Of the separate property, the spouse receives all of it if no children, parents, siblings or their descendants survive, one-half if there is one child or only parents or siblings, and one-third if there is more than one child.

Can I use the affidavit for a house?

Not the personal property affidavit. Real property uses the DE-305 affidavit if all California real property is worth $69,625 or less, or the court petition for a primary residence worth up to $750,000.

What if the estate is over the limit?

If the estate is over these limits, a property does not fit any of the procedures, or family members disagree about who inherits, a formal probate case may be needed. A dispute may end up in court; our civil litigation page explains how contested cases move.

How can we avoid this for the next generation?

Planning ahead avoids most of it: assets in a funded living trust, joint tenancy property and accounts with named beneficiaries all stay out of the count. Our article on questions to ask before hiring an attorney can help you choose someone to prepare the plan.

How can Glendale Law help?

We help families work out which assets count, choose the right procedure, prepare the affidavit or petition, and handle probate when it cannot be avoided. If you want to spare your own family this process, our attorney Avo Nalbandian can talk with you about a will or trust. Call (818) 244-9000 or request a consultation.