How to Settle a California Estate Without Going Through Probate

Most California families can settle an estate without formal probate. California law provides at least five distinct simplified procedures — and for deaths occurring on or after April 1, 2025, a single estate can now transfer both a primary residence valued up to $750,000 and personal property up to $208,850 through simplified procedures simultaneously, bypassing the Superior Court entirely. The key is knowing which procedure applies to your estate's specific asset composition and executing each in the correct sequence.

Formal probate in California — the full court-supervised administration process — is both expensive and slow. Statutory fees under Probate Code Sections 10800 and 10810 are calculated on the gross value of the estate, ignoring mortgages and debts. On a $1,000,000 home with an $800,000 mortgage, combined executor and attorney fees total $46,000. Court timelines in Los Angeles County average 18–24 months. The simplified procedures described below exist precisely because the California legislature recognized that the formal probate process was consuming estates that did not require it.

Step 1: Calculate Your True Probate Estate

Before determining which simplified procedure applies, you need to identify which assets are actually subject to probate — and which assets transfer automatically outside any court process under Probate Code Section 13050.

Assets excluded from the probate estate (and excluded from threshold calculations):

• Assets properly titled inside a Revocable Living Trust
• Real or personal property held in Joint Tenancy with Right of Survivorship
• Community Property with Right of Survivorship (CPWROS)
• Bank accounts with a valid Payable-on-Death (POD) designation
• Investment accounts with a Transfer-on-Death (TOD) registration
• Life insurance policies with a living named beneficiary
• Retirement accounts (IRAs, 401(k)s, pensions) with a living named beneficiary
• California-registered vehicles (transferred via DMV Form REG 5, not probate)

What remains is your "gross probate estate." This is the number you test against California's simplified transfer thresholds. Most families are surprised by how small this number is once nonprobate assets are properly excluded.

Step 2: Match Your Estate to the Correct Simplified Procedure

Procedure A: Small Estate Affidavit — Personal Property Under $208,850

Applicable for: Solely-owned bank accounts, investment accounts without TOD registration, stocks, physical valuables — if the total gross probate estate does not exceed $208,850.

How it works: The successor presents a sworn affidavit directly to the institution holding the asset. There is no official Judicial Council form — you draft the affidavit yourself under Probate Code Sections 13100–13106 and attach Form DE-300 (which states the current statutory threshold). Under Probate Code Section 13105, institutions are legally required to honor a compliant affidavit. Unreasonable refusal entitles you to bring a court action and seek attorney's fees against the institution.

Mandatory waiting period: 40 days from the date of death.

Filing fee: None. No court filing required.

What you need: Certified authorized death certificate (not an informational copy), completed affidavit citing Probate Code 13100, Form DE-300 attachment, and proof of entitlement (will or intestacy relationship).

Procedure B: AB 2016 Primary Residence Petition — Home Valued Under $750,000

Applicable for: The decedent's primary California residence, valued under $750,000, for deaths on or after April 1, 2025. This procedure is entirely separate from the $208,850 personal property limit.

How it works: File Form DE-310 (Petition to Determine Succession to Real Property) in the Superior Court of the county where the property is located. The court appoints a Probate Referee to appraise the property. After a brief hearing, the court issues an order transferring the property without opening a formal probate.

Mandatory waiting period: 40 days from the date of death before filing.

Filing fee: This is a simplified court petition, not full probate. Fees are significantly lower than the $435 probate initiation fee and the statutory compensation schedule. Check the specific county's fee schedule.

Key limitation: Applies only to the primary residence — not investment property, vacation homes, or commercial real estate. If the home is appraised above $750,000, it does not qualify, regardless of the mortgage balance.

Combination play: A family with a $650,000 primary home and $180,000 in bank accounts can file the DE-310 for the house while simultaneously executing a small estate affidavit for the cash. Both procedures run concurrently. Full probate is not required for either.

Procedure C: Spousal Property Petition — Surviving Spouse or Registered Domestic Partner

Applicable for: Any estate where a surviving spouse or registered domestic partner is the primary heir. There is no dollar limit.

How it works: File Form DE-221 (Spousal or Domestic Partner Property Petition) in the Superior Court. The petition asks the court to confirm the surviving spouse's existing share of community property and transfer the decedent's share. The process is far simpler than full probate — a single hearing, typically resolved in 30–60 days.

Filing fee: Standard civil filing fee (approximately $435, significantly less than the full probate cost structure).

Key advantage: No statutory fee percentage. The 4%/3%/2% fee schedule under Probate Code Sections 10800 and 10810 does not apply to spousal petitions. The surviving spouse avoids the fee that would otherwise consume tens of thousands of dollars on a high-value estate.

Separate property consideration: The spousal petition efficiently handles community property and the surviving spouse's interest. If the decedent had significant separate property going to non-spouse heirs, those assets may require separate procedures.

Procedure D: Trust Administration — If a Living Trust Exists

Applicable for: Estates where the decedent created a Revocable Living Trust and properly titled assets into it during their lifetime.

How it works: No court involvement is required for assets held inside the trust. The successor trustee takes over management immediately, distributes assets per the trust terms, and handles administrative obligations outside the court system entirely.

Critical deadline: Probate Code Section 16061.7 requires the successor trustee to serve written notice on every beneficiary and legal heir within 60 days of the settlor's death. Failure to serve this notice leaves the trust indefinitely vulnerable to contests — the 120-day statute of limitations for contesting the trust never starts running.

The unfunded trust problem: A common crisis: the trust document exists, but the home, the bank accounts, or other assets were never titled into the trust's name. Those assets are subject to probate despite the trust's existence. In some cases, a "Heggstad Petition" under Probate Code Section 850 can save the estate by petitioning the court to declare an asset a trust asset based on the decedent's written intent. This requires an attorney.

Procedure E: Non-Probate Designations — Assets That Transfer Automatically

Many assets transfer outside any procedure at all. Joint tenancy accounts with Right of Survivorship pass automatically to the surviving account holder. POD bank accounts release to the named beneficiary on presentation of a death certificate. Life insurance and retirement accounts pay directly to the designated beneficiary regardless of the will. California-registered vehicles transfer via DMV Form REG 5 (a 40-day wait applies, and the non-vehicle probate estate cannot exceed $208,850).

These assets require no court petition, no affidavit, and no attorney.

Step 3: The Critical Deadlines You Cannot Miss

Avoiding probate does not mean avoiding administrative responsibility. The simplified procedures come with deadlines that, if missed, can force you into the formal probate process you were trying to avoid — or trigger financial penalties that probate would not have imposed.

The Proposition 19 Issue Is Separate From Probate

One of the most common errors families make when bypassing formal probate is assuming that bypassing probate also resolves their Proposition 19 obligation. It does not.

When a California home transfers to an adult child — whether through a trust, a DE-310 petition, or any other mechanism — Proposition 19 triggers automatically unless the child files for the reassessment exclusion. The exclusion requires two things: the child must establish the home as their primary residence within one year of the transfer date, and they must file Form BOE-19-P with the county assessor.

The inflation-adjusted cap for 2025–2027 is $1,044,586. If the home's current market value exceeds the child's inherited assessed value plus $1,044,586, the portion above that cap is reassessed. If the home's market value does not exceed the cap, the child keeps the parent's exact property tax base. Either way, the BOE-19-P must be filed.

Vacation homes and rental properties are not eligible for the exclusion under Proposition 19, regardless of value.

When the Simplified Routes Do Not Work

The simplified procedures described above do not apply in every situation. You will likely need formal probate — and may need an attorney — if:

• The estate includes real property that is not the primary residence and is worth more than $69,625 (the DE-305 small property threshold)
• The primary residence is worth more than $750,000 (ineligible for the DE-310 petition) and there is no living trust
• A financial institution refuses to honor a valid small estate affidavit and you exhaust the escalation process without resolution
• The estate contains business interests, intellectual property, or multi-state assets
• Beneficiaries are disputing the will, trust, or the executor's authority
• The decedent had significant undisclosed debts or creditor claims that need to be adjudicated through the formal creditor notification process

For these situations, a California probate attorney is the right resource. The expense is real, but so is the legal risk of attempting contested or complex matters without professional representation.

FAQ

What is the current California small estate affidavit threshold in 2025 and 2026?

For decedents who died on or after April 1, 2025, the small estate affidavit threshold for personal property under Probate Code Section 13100 is $208,850. This figure adjusts every three years based on the Consumer Price Index. Vehicles registered in California are excluded from this calculation and transfer separately via DMV Form REG 5.

Can I use the small estate affidavit for a California bank account if the deceased has no will?

Yes. The small estate affidavit under Probate Code Section 13100 is available to any person who is entitled to the property under California's intestacy laws — not just named beneficiaries under a will. You must accurately state in the affidavit your entitlement relationship and that no probate proceeding is pending or has been commenced.

What happens when a bank refuses to accept a California small estate affidavit?

Present the affidavit again in writing, citing Probate Code Section 13100 by name and requesting escalation to the bank's estate services department. If the estate services department refuses, send a formal written demand citing Probate Code Section 13105, which imposes liability on institutions that unreasonably refuse compliant affidavits. Most rejections resolve at the estate services level. If not, a Superior Court petition can compel the release and seek attorney's fees from the institution.

Is it possible to avoid all probate fees in California even for a large estate?

If the estate is properly structured — assets held in a living trust, with joint tenancy accounts and POD/TOD designations on all financial accounts — it is possible to transfer a very large California estate with no probate fees at all. The challenge is that most families discover the estate was not properly structured after the death, not before. At that point, the DE-310 petition and the small estate affidavit cover many situations, but a $1.5 million home that is not the primary residence and has no trust will generally require formal probate.

Does California have an inheritance tax or estate tax?

California has no state estate tax and no inheritance tax. The federal estate tax exemption is $13.99 million per individual in 2025. Estates below this threshold owe no federal estate tax. However, FTB Form 541 (California Fiduciary Income Tax Return) may be required if the estate generates more than $10,000 in gross income during the administration period, and IRS Form 1041 is required if federal gross estate income exceeds $600.

Where can I get the complete California estate settlement procedure, including all simplified routes?

The When Someone Dies in California — Estate Settlement Guide covers all five simplified transfer procedures, the gross probate estate calculation, the Proposition 19 deadline and BOE-19-P filing sequence, the Medi-Cal estate recovery defense, bank escalation tactics, and the master timeline with every statutory deadline from day 1 through month 24. It was updated for 2026 California law, including the AB 2016 DE-310 primary residence petition, the AB 64 death certificate fee increase, and the 2026 Medi-Cal asset limit reinstatement.

See more California guides →