California Small Estate Affidavit 2026: New $208,850 Threshold Guide

Reviewed by Rozsa Gyene, California attorney. Last reviewed October 2026.

Three Procedures, Three Limits

People say "small estate affidavit" for three different procedures in Division 8 of the Probate Code. They have different limits, different waiting periods and different forms, and the most common mistake is using the wrong one.

The limits are tied to the date of death, not the date you sign or file. Probate Code §890 has the Judicial Council adjust them every three years on April 1, and §890(d) says an adjustment does not apply when the death came before it. The Judicial Council's table and form DE-300 list the figures:

The Judicial Council says the next adjustment is April 1, 2028; there was no 2026 adjustment. For the §13151 petition, §13152(f)(3) fixes $750,000 for deaths from April 1, 2025 through March 31, 2028. Since January 1, 2025 the petition reaches only the primary residence, so for an earlier death the older figure is applied to the home alone (form DE-310, item 8).

What Counts Toward the $208,850

Section 13100 measures "the gross value of the decedent's real and personal property in this state," leaving out two things: property described in §13050, and any property included in a petition filed under §13151. Three words in that test do most of the work.

• Gross. Value is fair market value on the affidavit date, with no deduction for a car loan, a mortgage, credit cards or funeral bills.
• Real. California real estate counts. A rental condo worth $250,000 puts the estate over the limit by itself, even if the decedent had only $5,000 in the bank.
• In this state. Real estate in another state is not counted here, but it needs its own process in that state.

Left out under §13050:

• Property in a trust the decedent could revoke, which is why a funded living trust takes assets out of the count entirely (§13050(a)(1)).
• Joint tenancy property, life estates and other interests that end at death, and property that passes to a surviving spouse under §13500.
• Joint, P.O.D. and other multiple-party accounts, to the extent the money belongs to the surviving party or payee (§13050(a)(2)).
• Vehicles registered with the DMV, numbered vessels, and mobilehomes or manufactured homes registered under the Health and Safety Code (§13050(b)).
• Amounts owed for service in the U.S. armed forces, and up to $20,875 of unpaid salary or vacation pay for deaths on or after April 1, 2025 (§13050(c), as adjusted on DE-300).

Life insurance and retirement accounts with a living named beneficiary are paid to that beneficiary on the company's own claim form, so they are not part of the count either. If the estate is the beneficiary, or every named beneficiary died first, the money comes back into the count.

Using the §13100 Affidavit, Step by Step

1. Wait 40 days. The affidavit has to state that at least 40 days have passed since the death, as shown by the death certificate (§13101(a)(3)). Certified copies cost $26 each from the California Department of Public Health in 2026. Order one for every bank, brokerage and other holder.
2. Identify the successor. The "successor" is the beneficiary under the will, or the heir under intestate succession if there is no will (§13006). A will does not stop you from using the affidavit; it decides who signs it. If several people inherit an item, all of them sign (§13101(b)).
3. Prepare the affidavit. Section 13101(a) lists eleven statements it must contain, including the decedent's name and date and place of death, that no probate is open in California, the value statement, a description of the property, and that no one has a better right to it. There is no statewide Judicial Council form. Some courts post a local version; check the dollar figure on any local form before you sign. Riverside Superior Court's form RI-PR012, as posted in October 2026, still prints $166,250, the limit for deaths before April 1, 2022.
4. Attach what the statute requires. A certified death certificate (§13101(d)); for any death on or after April 1, 2022, the Judicial Council list of adjusted amounts, form DE-300 (§13101(f)); and, if a personal representative consented, the consent and letters (§13101(e)). If the decedent owned any California real estate, a probate referee's inventory and appraisal of it must go with the affidavit too (§13103).
5. Prove who you are. The statute accepts a declaration under penalty of perjury; it does not require a notary. It does require reasonable proof of identity (§13104). Signing in front of the bank officer with a current driver's license works, and a notary's acknowledgment also works. If you will mail the affidavit, have it notarized. A notary may charge up to $15 per signature (Gov. Code §8211).
6. Present it to each holder. A bank, brokerage or transfer agent that receives a proper affidavit must pay or transfer the property, and it is discharged from liability by relying on it in good faith (§§13105, 13106). If a holder refuses within a reasonable time, you can sue to compel the transfer, and the court must award you reasonable attorney's fees if the refusal was unreasonable (§13105(b)).
7. Vehicles go through the DMV. A car is excluded from the count, and the DMV transfers title to an heir on its own Affidavit for Transfer Without Probate (REG 5) with the death certificate.

The affidavit is not filed with any court, so nothing becomes a public court record.

The $750,000 Primary Residence Petition (Prob. Code §13151 and Following)

Before Assembly Bill 2016 (Stats. 2024, ch. 331), the §13151 petition used the same limit as the affidavit, measured against all of the decedent's California property: $184,500 for deaths from April 1, 2022 through March 31, 2025. AB 2016 raised it to $750,000 and limited it to one kind of property: the decedent's primary residence in California. The $750,000 figure applies to deaths on or after April 1, 2025 (§13152(f)(3)).

What the petition requires

• A verified petition on form DE-310 filed in the superior court of the county where the estate would be administered, at least 40 days after the death (§§13151(a), 13152(a)).
• An inventory and appraisal of the home by a probate referee appointed by the State Controller for that county, on forms DE-160 and DE-161 (§13152(b)). The referee's commission is one tenth of one percent of the value appraised, at least $75, plus expenses (§§8961, 8963).
• A copy of the will if you claim under it, and form DE-300 for any death on or after April 1, 2022 (§13152(c), (e)).
• Notice of the petition to every heir and devisee within five business days of filing (§13151(b)), and notice of the hearing under §1220 (§13153).
• The court's order on form DE-315 determines that the home passes to the petitioners (§13154). The form has a recorder's box; record a certified copy in the county where the home is so the title records show the new owners.

The test is gross value, not equity. A home appraised at $900,000 with a $400,000 mortgage does not qualify. A rental, a second home, vacant land or a home outside California does not qualify at any value.

Property tax after the order. An inheritance is a change in ownership for property tax. A child who makes the home their own principal residence can claim the Proposition 19 parent-child exclusion: for transfers from February 16, 2025 through February 15, 2027 the home keeps the parent's taxable value if its market value is no more than that value plus $1,044,586, and any excess is added. The child files for the homeowners' exemption within one year and the exclusion claim within three years (State Board of Equalization).

Real Property of Small Value (Prob. Code §13200)

This affidavit reaches any California real property, not only a residence, but the limit is low: $69,625 for all of the decedent's California real property, excluding §13050 property, for deaths on or after April 1, 2025. That count does not leave out a home included in a §13151 petition, so a decedent who owned a house in their own name will rarely qualify.

• File no sooner than six months after the death, in the superior court of the county where the decedent lived (§13200(a)).
• Use form DE-305. Each signer's signature must be notarized (§13200(b)).
• Attach an inventory and appraisal by a probate referee, a certified death certificate, form DE-300, and the will if you claim under it (§13200(c) to (f)).
• The affidavit states that funeral expenses, expenses of last illness and all unsecured debts have been paid (§13200(a)(8)).
• The filing fee is $45 (Gov. Code §70626(b)). The clerk issues a certified copy, which you record in the county where the land is (§13202).

When a Surviving Spouse Inherits

Property that passes to a surviving spouse, by will or by intestate succession, passes without administration under §13500, and §13050(a)(1) leaves it out of the small estate count. When a bank or title company wants a court order, the spouse files a spousal property petition under §13650; the filing fee is $435 ($450 in Riverside and San Francisco). Separately, when the net estate is $107,900 or less for a death on or after April 1, 2025, a surviving spouse or minor children can ask the court to set the estate aside to them under §6602; that petition costs $225.

What You Owe After You Collect

These procedures skip the creditor claim process of a probate, so the law puts the risk on the person who receives the property.

• Debts. You are personally liable for the decedent's unsecured debts, up to the fair market value of what you received less liens (§13109 for the affidavit, §13156 for the petition, §13204 for the real property affidavit).
• Other heirs. If someone had a better right to the property under the will or intestate succession, you are liable to that person for its value, and for three times its value if you obtained it by fraud (§13110).
• A later probate. If a probate is opened later and the personal representative decides another person had a better right to the property, the personal representative can require you to return it, or its value with 7 percent interest if you sold it (§§13111, 13206). That claim is barred three years after the affidavit is presented (for the real property affidavit, three years after the clerk issues the certified copy), or three years after discovery of fraud, whichever is later.

If None of These Fit

If the count is over $208,850 and the real estate cannot use §13151 or §13200, the estate goes through a full probate. What that costs, from the $435 filing fee to statutory fees, is covered on our California probate costs page, and the steps are in the probate process guide. If you have been named executor, start with executor duties in California.

For your own planning, every one of these limits stops mattering for property held in a funded revocable trust, because §13050(a)(1) leaves trust property out of the count and the successor trustee transfers it without a court. Our attorney-prepared trust is $400 for one person or $500 for a married couple, and a home goes in with a $400 trust plus $100 deed. For a house in particular, see how to avoid probate on a house; for local recording and court details, see the Los Angeles and Riverside pages.

Frequently Asked Questions

Related Reading

• California probate costs: what a full probate costs when these procedures are not available
• California probate fees: the statutory fee schedule under §§10800 and 10810
• Avoid probate on a house
• Dying without a will in California: who the heirs are under intestate succession
• Successor trustee duties checklist
• Probate cost calculator