Affidavit for Real Property of Small Value

I recently had a client, David, whose mother passed away unexpectedly while vacationing in Arizona. She owned a small condo there, valued at around $180,000. David was devastated, not just by the loss, but by the fact that her hastily-prepared will lacked a signed and dated codicil updating the beneficiary designations. He feared a lengthy and expensive probate, tying up the property for months. This is a common scenario, and thankfully, there are often faster, more efficient options than full probate – particularly when dealing with smaller estates and real property. After 35+ years as an Estate Planning Attorney and CPA, I’ve seen firsthand how a little advance planning can save families significant time, expense, and emotional distress. The key, often, is recognizing when a simplified procedure will work.

What is the Affidavit for Real Property of Small Value?

California law provides a streamlined process for transferring real property when the estate’s overall value falls below a certain threshold. This is often referred to as the “Affidavit for Collection of Personal Property,” although it does apply to real estate as well. For deaths on or after April 1, 2025, if the gross value of the estate is under $208,850, you generally do not need to open a full probate. You can use the ‘Affidavit for Collection of Personal Property.’ Note: This limit excludes cars, boats, and trust assets. It’s not a ‘one size fits all’ solution, but it’s a powerful tool when the circumstances align.

How Does it Work in Practice?

The process involves completing a specific affidavit form – available on the California Courts website – and submitting it to the county recorder where the property is located, along with a death certificate and other supporting documentation. This affidavit essentially serves as a sworn statement affirming that the estate meets the requirements for a simplified transfer. The affidavit must include specific information about the deceased, the property, the heir(s), and the estate’s value. It’s crucial to be accurate and thorough; even minor errors can cause delays or rejection.

What are the Limitations?

While convenient, this method has limitations. First, the estate must genuinely be small. If other assets – bank accounts, stocks, vehicles, etc. – push the total value above $208,850, this procedure won’t work. Second, it’s primarily designed for transferring property to a single heir. If there are multiple heirs with differing ownership interests, a more complex approach may be necessary. Third, it doesn’t address potential creditor claims. While this method avoids the full creditor waiting period of formal probate, creditors could still pursue claims directly against the heir who receives the property.

What if the Property Value Exceeds the Limit?

If the real property is the primary asset, but its value exceeds $208,850 but is less than $750,000, there’s another option: AB 2016 (Petition for Succession). This allows for a simplified court process to transfer ownership of the property, avoiding the complexities of full probate. It involves filing a ‘Petition for Succession to Real Property’ (Probate Code § 13151) with the court, but it’s still considerably faster and less expensive than full probate.

Why a CPA’s Perspective Matters

As a CPA as well as an attorney, I bring a unique perspective to estate planning. Determining the accurate value of the estate isn’t just a legal issue; it’s a tax issue. Understanding the potential for a “step-up in basis” for inherited assets – meaning the cost basis is reset to the fair market value at the time of death – is critical to minimizing capital gains taxes when the property is eventually sold. Accurate valuation is paramount. I can advise you on this as well.

What if the Decedent Owned Property in Multiple States?

This gets more complex. If a non-resident of California leaves property here (and it exceeds the small estate limits), you must open an ‘Ancillary Administration.’ This is a secondary probate that often runs parallel to the main probate in the decedent’s home state. This adds expense and time, so planning ahead – perhaps through a trust – is especially valuable in such situations.

What if There’s a Trust Involved?

A properly funded trust can bypass probate altogether. Technically not a ‘probate’ type, but a remedy. If an asset was meant for the trust but listed in the decedent’s name, a Section 850 Petition can confirm it as trust property, allowing you to bypass the full probate administration entirely. This is why we stress careful funding of trusts during the estate planning process.

What causes California probate cases to spiral into delay, disputes, and extra cost?

The path through California probate is rarely a straight line; it requires precise adherence to statutory deadlines, accurate asset characterization, and strict fiduciary compliance. Without a clear roadmap, what begins as a standard administrative proceeding can quickly dissolve into a costly battle over interpretation, valuation, and beneficiary rights.

A stable probate administration outcome usually follows from clarity, consistency, and readiness for court review, especially when multiple stakeholders and competing interpretations are involved. When documentation supports enforcement and timelines are respected, families are less likely to face preventable escalation.

Verified Authority on Types of California Probate

• Spousal Property Petition: California Probate Code § 13650
  The gold standard for surviving spouses. This petition allows for the transfer of community and separate property to the surviving spouse without the delays of full probate. There is no dollar limit on the value of assets transferred under this section.
• Small Estate Affidavit ($208,850 Limit): California Probate Code § 13100
  For smaller estates (valued under $208,850 as of April 1, 2025), this procedure allows successors to collect money and tangible personal property by presenting a notarized affidavit to the holder (e.g., the bank), bypassing the courts entirely.
• Petition for Succession (AB 2016): California Probate Code § 13151
  Designed for “house-only” estates. If the primary residence is worth less than $750,000, this court-supervised summary proceeding allows for the transfer of the property. It is faster and cheaper than full probate but requires a judge’s order to clear title.
• Ancillary Administration (Foreign Domicile): California Probate Code § 12501
  If the decedent lived in another state (e.g., Nevada) but owned a vacation home in California, the California courts have jurisdiction over that real estate. “Ancillary Probate” is the process used to admit the foreign will and distribute the California property.
• Special Administration (Emergency): California Probate Code § 8540
  When time is of the essence. If assets are in danger or a business needs immediate management, the court can appoint a Special Administrator. These powers are temporary and specific, intended only to hold the line until a general executor is appointed.
• The “Heggstad” Petition (Trust Cure): California Probate Code § 850
  Often mistaken for probate, this is actually a petition to avoid it. If a decedent had a trust but forgot to title an asset in the trust’s name, a Section 850 petition asks the court to declare that the asset belongs to the trust, bypassing the need for a full estate administration.