Affidavit for Small Value Real Property

Randy just lost his mother, Eleanor, and discovered a significant oversight. She owned a small cabin in Big Bear, intending it to pass directly to him, but she never updated her trust to reflect that. Now, probate looms, and Randy faces not only the emotional toll of loss but also potentially $35,000 in legal fees and a year-long wait to access the property he expected to inherit immediately. This situation, sadly, is far too common.

What happens if my parent dies without a trust, or with assets accidentally left out of their trust?

Too many people believe a trust is a “set it and forget it” solution. It’s not. Life changes – acquisitions, sales, even simply forgetting to update beneficiary designations – can render a trust incomplete. A common mistake is failing to retitle assets into the trust’s name. If a property is still titled in your parent’s individual name at death, it will likely require probate, even if the trust clearly states it should be included. Fortunately, California law provides some pathways around full probate, depending on the asset’s nature and value.

Can I avoid probate for a small value property using an affidavit?

Yes, in certain cases. For real property interests valued at less than $69,625 (the 2025/2026 adjusted limit), successors can file an Affidavit for Real Property of Small Value (Probate Code § 13200) with the Court Clerk and record a certified copy with the County Recorder, completely bypassing the need for a hearing. This is a streamlined process, but the value limitation is strict. It’s ideal for small parcels of land, timeshares, or older properties with minimal equity.

What if the property is a primary residence? Are there different rules?

Absolutely. The rules for primary residences are different—and often more favorable. Under AB 2016 (Probate Code § 13151), a primary residence valued up to $750,000 qualifies for a ‘Petition for Succession’ rather than full probate administration. This is a court-filed petition requiring a hearing and a Judge’s Order, but is still far less complex and costly than formal probate.

CRITICAL DISTINCTION: Don’t confuse this with the affidavit for small value. The affidavit is a simpler, clerk-level process; the Petition for Succession requires judicial approval. Furthermore, if the home exceeds $750,000, or is not a primary residence, the Petition for Succession isn’t an option.

What about other assets – cash, stocks, vehicles? Can those be transferred without probate?

Yes, often. For deaths occurring on or after April 1, 2025, the gross value threshold for using a Small Estate Affidavit (Probate Code § 13100) has increased to $208,850. This procedure allows successors to collect personal property without court involvement. However, this total MUST NOT include assets held in joint tenancy, trust, or those with named beneficiaries (POD/TOD), but MUST include the value of any real property unless that property is handled via a separate summary procedure. Vehicles and vessels may be transferred outside of probate using the Affidavit for Transfer Without Probate (DMV Form REG 5). The value of the vehicle is excluded from the $208,850 small estate calculation.

What if my parent had a trust but forgot to include a specific asset? Is all hope lost?

Not necessarily. If a decedent intended an asset to be in their trust (e.g., listed on Schedule A) but failed to retitle it, a Section 850 Petition (Probate Code § 850) can obtain a court order confirming the asset as trust property. This ‘cures’ the title defect and avoids a full probate estate for that single asset. It’s a relatively simple, cost-effective process.

My clients often ask about Transfer on Death Deeds – are those a good option?

They can be. A Revocable Transfer on Death Deed is a valid alternative to probate for residential property, but it MUST be recorded within 60 days of notarization to be valid. Furthermore, beneficiaries assume liability for the decedent’s debts up to the value of the property for 3 years after death. While useful, they aren’t foolproof and require careful consideration of potential creditor claims.

What if my parent left everything to their spouse? Does probate still apply?

Generally, no. The Spousal Property Petition (Probate Code § 13650) allows for the transfer of unlimited assets to a surviving spouse without full probate administration, regardless of the estate’s value. It is strictly for assets passing to a spouse/domestic partner and requires the property be characterized as community property or quasi-community property.

As an Estate Planning Attorney and CPA with over 35 years of experience, I’ve seen firsthand how even seemingly small oversights can create significant headaches for grieving families. My CPA background uniquely positions me to navigate the tax implications of estate planning, especially concerning the crucial step-up in basis for inherited assets, which can significantly minimize capital gains taxes. Proper planning and diligent asset management are the keys to avoiding probate and ensuring your loved ones receive their inheritance swiftly and efficiently.

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.

• Escalation: Prepare for probate litigation if agreement fails.
• Document Challenges: Understand the grounds for will contest process.
• Cross-Over: Navigate complex probate and trust disputes.

California probate is most manageable when authority is documented early, assets are classified correctly, and procedure is followed consistently from petition through closing. When the process is approached with realistic expectations about notice, claims, accounting, and dispute risk, the estate is more likely to move toward closure without avoidable conflict or delay.

Verified Authority on California Probate Alternatives

• Personal Property Affidavit ($208,850 Limit): California Probate Code § 13100 (Small Estate Affidavit)
  For deaths on or after April 1, 2025, the gross value threshold for using a Small Estate Affidavit has increased to $208,850. This procedure allows successors to collect cash, stocks, and personal items without court involvement. Warning: This total MUST NOT include assets held in joint tenancy, trust, or named beneficiaries (POD/TOD), but MUST generally include the value of all real property in the estate.
• Primary Residence Succession (AB 2016): California Probate Code § 13151 (Petition for Succession)
  You must distinguish between the Affidavit for Real Property of Small Value (strictly for property <$69,625) and AB 2016. Under AB 2016, a primary residence valued up to $750,000 qualifies for a ‘Petition for Succession’ rather than full probate. This is a court-filed Petition requiring a Judge’s Order, though it is significantly faster than full administration.
• Spousal Property Petition (Unlimited): California Probate Code § 13650 (Spousal Transfers)
  This powerful alternative allows for the transfer of unlimited assets to a surviving spouse or domestic partner without full probate administration. It applies to any asset passing to the spouse, whether characterized as community property, quasi-community property, or separate property (via Will).
• Trust Assets & The “Heggstad” Petition: California Probate Code § 850 (Heggstad Petition)
  If a decedent intended an asset to be in their trust (e.g., listed on Schedule A) but failed to retitle it (the “Oops” factor), a Section 850 Petition can obtain a court order confirming the asset as trust property. This “cures” the title defect and avoids opening a full probate estate for that single asset.
• Vacant Land & Timeshares: California Probate Code § 13200 (Real Property of Small Value)
  For real property interests valued at less than $69,625 (the 2025/2026 adjusted limit), successors can file an Affidavit for Real Property of Small Value with the Court Clerk and record a certified copy with the County Recorder. This completely bypasses the need for a hearing or judge’s order.
• Vehicle & Vessel Transfers (DMV): DMV Form REG 5 (Affidavit for Transfer Without Probate)
  Vehicles and vessels may be transferred outside of probate using the Affidavit for Transfer Without Probate (REG 5). Critically, the value of the vehicle is excluded from the $208,850 small estate calculation, meaning a high-value car does not disqualify an estate from using summary procedures.
• Digital Asset Access (RUFADAA): California Probate Code § 870 (RUFADAA)
  Even in summary administration, digital assets can be locked. Without specific RUFADAA language (Probate Code § 870) in your Will or Trust, service providers like Coinbase and Google can legally deny successors access to digital wallets and accounts, forcing a full probate just to retrieve them.