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

By Rozsa Gyene, Estate Planning Attorney (State Bar #208356) | Updated May 22, 2026

If a loved one passed away with a modest estate in California, you may be able to avoid the expensive and time-consuming probate process using a small estate affidavit.

As an estate planning attorney practicing in California for 25+ years, I've helped countless families use small estate procedures to save thousands of dollars and months of court involvement.

This complete guide covers California's small estate affidavit in 2025, including the new increased threshold and simplified procedures for primary residences.

What Is a California Small Estate Affidavit?

A small estate affidavit (officially called "Affidavit for Collection of Personal Property" under California Probate Code Section 13100) is a sworn statement that allows heirs to collect a deceased person's assets without going through formal probate court.

Key Benefits:

• No court involvement: No probate judge, no hearings, no attorneys required
• Fast: Can be completed in 40-60 days (vs. 12-18 months for probate)
• Cheap: $0-500 costs (vs. $15,000-68,000+ for probate)
• Simple: Fill out form, wait 40 days, present to asset holders

How It Works:

1. Wait 40 days after death
2. Complete small estate affidavit form
3. Present affidavit to banks, DMV, etc.
4. Asset holders release property to you

It's that simple — if you qualify.

What Changed in California Small Estate Law

Change #1: Increased Threshold to $208,850

Effective: April 1, 2025

This $24,350 increase means more estates can now avoid probate entirely.

Change #2: Primary Residence Transfer (Up to $750,000)

Effective: April 1, 2025 (Probate Code § 13151)

California now allows transfer of a principal residence valued up to $750,000 without probate, even if other assets push the total estate above the $208,850 threshold.

Requirements:

• Property was decedent's principal residence
• Property value doesn't exceed $750,000
• No other real property in the estate
• Must wait 40 days after death
• Proper affidavit filed with county recorder

Example: Sarah dies owning a $600,000 house (her principal residence) and $100,000 in bank accounts. Total estate = $700,000.

• Before 2025: Must go through formal probate ($39,000 in fees)
• After April 1, 2025: House transfers under § 13151, bank accounts under small estate affidavit — NO probate needed!

Do You Qualify for Small Estate Affidavit?

You can use California's small estate affidavit if ALL of these are true:

✓ Requirement 1: Value Limit

For deaths April 1, 2025 or later: Total gross estate ≤ $208,850

For deaths before April 1, 2025: Total gross estate ≤ $184,500

✓ Requirement 2: 40-Day Waiting Period

At least 40 days must pass since the person died. This waiting period allows time for anyone to file a formal probate petition if needed.

✓ Requirement 3: No Probate Filed

No one else has filed for formal probate, and no one is appointed as executor/administrator.

✓ Requirement 4: You're an Heir or Successor

You must be entitled to the property either:

• Under the will (if there is one), or
• Under California intestate succession laws (if no will)

✓ Requirement 5: Personal Property Only (with exceptions)

Standard small estate affidavit applies to personal property only (bank accounts, vehicles, stocks, etc.).

For real estate: Use separate procedures:

• Principal residence up to $750,000: Probate Code § 13151 (new in 2025)
• Other real property up to $69,625: Affidavit re Real Property of Small Value (§ 13200)

What Counts Toward the Limit?

Included in $208,850 limit:

• Bank accounts
• Investment accounts
• Vehicles
• Personal property
• Amounts owed to decedent

NOT included (exemptions):

• Property held in living trust
• Joint tenancy property (automatically transfers to surviving joint tenant)
• Life insurance with named beneficiary
• Retirement accounts (IRA, 401k) with named beneficiary
• Transfer-on-death (TOD) accounts with named beneficiary
• Vehicles (up to 2) passed to spouse/domestic partner

How to Use California Small Estate Affidavit: Step-by-Step

Step 1: Wait 40 Days

You must wait at least 40 days from the date of death before you can use the small estate affidavit.

Step 2: Gather Information

Collect:

• Death certificate (certified copy)
• List of all assets and values
• Will (if one exists)
• Names and addresses of all heirs

Step 3: Complete Form DE-305

Fill out Affidavit for Collection of Personal Property (Form DE-305), available free at California Courts website.

Information required:

• Decedent's name and date of death
• Your name and address (the affiant)
• Description of property being claimed
• Statement that no probate is pending
• Statement that value is under threshold
• List of known heirs

Step 4: Sign Before Notary

You must sign the affidavit in front of a notary public.

Cost: $15 per signature (California notary fee)

Step 5: Present to Asset Holders

Take the completed, notarized affidavit to:

• Banks: To withdraw funds
• Brokerage firms: To transfer securities
• DMV: To transfer vehicle title
• Employers: To collect final wages
• Others: Anyone holding decedent's property

Step 6: Asset Holders Release Property

Once presented with a valid affidavit, asset holders must release the property to you. They have legal protection for doing so (they won't be liable for giving you the property based on the affidavit).

Step 7: Distribute According to Law or Will

You must distribute the assets according to:

• The will (if there is one), or
• California intestate succession laws (if no will)

Special Rules for Real Estate in Small Estates

Real estate requires different procedures:

Option 1: Primary Residence Up to $750,000

Use: Probate Code §§13151–13154 (threshold effective for deaths on or after April 1, 2025)

Procedure: A petition filed with the superior court, not an affidavit recorded with the county. The court issues an order determining that the property passes to you.

Requirements:

• The property was the decedent's primary residence in California
• Gross value of that real property is $750,000 or less
• At least 40 days have elapsed since the death (§13151)
• File the petition with the superior court and obtain the court order

Cost: Court filing fee, plus recording fees once the order is issued.

Option 2: Other Real Property Up to $69,625

Use: Probate Code Section 13200

Form: Affidavit Re Real Property of Small Value (Form DE-305)

Requirements:

• Gross value of the California real property is $69,625 or less
• At least six months have elapsed since the death (§13200)
• File the affidavit with the superior court, which issues a certified copy
• Record the certified copy with the county recorder

Option 3: Spouse/Domestic Partner Set-Aside

Surviving spouse or domestic partner can petition court to set aside entire estate (including real property) without probate if total value is under specific limits.

For all other real estate: If property doesn't fit the above categories and estate exceeds thresholds, formal probate is required. This is why creating a living trust is so important for California homeowners.

The $750,000 Primary Residence Procedure (Prob. Code §§13151–13154)

Most guides to California small estates stop at the $208,850 affidavit. That leaves out the procedure that matters most to homeowners, because almost no California home fits under $208,850. Assembly Bill 2016 (Stats. 2024, ch. 331) changed that.

What AB 2016 changed

Before AB 2016, the petition under §13151 used the same dollar limit as the small estate affidavit. When that limit was $184,500, the procedure was useless for real property in most of the state.

AB 2016 broke §13151 out on its own and raised it to $750,000, then narrowed it to one kind of property: the decedent's primary residence in California. The new threshold applies to deaths on or after April 1, 2025. A family home that would have required full probate administration two years ago may now pass by petition.

How it differs from the §13100 affidavit

These are two different procedures, and the difference is not just the dollar figure.

The §13100 small estate affidavit involves no court at all. You wait 40 days, sign an affidavit, present it to whoever holds the asset, and they transfer it. It reaches personal property only: bank accounts, vehicles, securities. It cannot transfer real estate.

The §13151 procedure is a petition filed with the superior court. A judge reviews it and issues an order determining that the property passes to you. It is more work than an affidavit and it costs a filing fee, but it does the one thing the affidavit cannot: it clears title to a house.

Which procedure applies when

All three figures apply to deaths on or after April 1, 2025. The procedures are not mutually exclusive. An estate holding a $600,000 house and $150,000 in bank accounts can use the §13151 petition for the house and the §13100 affidavit for the accounts, and avoid formal probate on both.

What it does not cover

The $750,000 procedure is limited to the primary residence. It does not reach rental property, a second home, vacant land, or real property outside California. If the decedent owned a residence plus a rental, the rental needs its own path, and if it is worth more than $69,625, that path is formal probate.

The limit is also measured on gross value, not equity. A residence worth $900,000 with a $400,000 mortgage does not qualify, even though only $500,000 of value would actually pass to the family.

When these amounts change

Probate Code §890 adjusts these figures for inflation every three years, effective April 1, using the Consumer Price Index and rounding to the nearest $25. The adjustments took effect April 1, 2022 and April 1, 2025. The next one is April 1, 2028. The figure that applies is the one in effect on the date of death, not the date you file.

If the estate is over these limits, or the property is not a primary residence, formal probate applies and statutory fees are calculated under Probate Code §§10800 and 10810 on the gross value of the estate. A funded living trust avoids the question entirely. See our guide to living trust costs in California or read how a revocable living trust keeps a home out of probate regardless of its value.

Small Estate Affidavit vs. Formal Probate

Bottom line: If you qualify for small estate procedures, you save thousands of dollars and months of time. If you don't qualify, consider whether creating a living trust makes sense for future planning.

Required California Forms

For Personal Property:

• Form DE-305: Affidavit for Collection of Personal Property (Probate Code § 13100)
• Download free: California Courts DE-305

For Real Property Under $69,625:

• Form DE-310: Affidavit Re Real Property of Small Value (Probate Code § 13200)

For a Primary Residence Under $750,000 (§§13151–13154):

• Modified affidavit for Probate Code § 13151 (forms being updated by courts for April 2025)

Timeline and Waiting Periods

Day 0: Date of death

Day 1-40: Mandatory waiting period (cannot use affidavit yet)

Day 40+: Can complete and present small estate affidavit

Day 40-60: Typical completion timeframe

Why the 40-Day Wait?

This waiting period allows:

• Time for someone to file formal probate if needed
• Creditors to make claims
• Family members to object

Real Estate Exception:

For real property under $69,625 (NOT the new principal residence provision), you must wait 6 months after death.

Common Small Estate Affidavit Mistakes

1. Using It When Estate Exceeds Threshold

If the estate is worth more than $208,850 (as of April 2025), you cannot use the small estate affidavit for personal property. Asset holders will refuse it, and you may face legal liability.

2. Not Waiting Full 40 Days

If you present the affidavit before 40 days have passed, it's invalid. Asset holders won't accept it.

3. Including Exempt Assets in Calculation

Don't count assets that pass outside probate (trust assets, beneficiary designations, joint tenancy property). Only count assets that would otherwise go through probate.

4. Using Wrong Form for Real Estate

Real estate requires different forms and procedures. Using DE-305 (personal property form) for real estate won't work.

5. Not Paying Decedent's Debts

You're personally liable for decedent's debts up to the value of assets you collect. Pay legitimate debts before distributing to heirs.

6. False Statements

You sign under penalty of perjury. False statements can result in criminal charges and civil liability.

Frequently Asked Questions

Can I use a small estate affidavit if there's a will?

Yes! You can use the small estate affidavit whether there's a will or not, as long as the estate value is under the threshold.

What if the estate is slightly over $208,850?

You cannot use the small estate affidavit. You'll need formal probate. However, consider whether any assets qualify for exemptions (beneficiary designations, trust transfers, etc.) to get below the threshold.

Do I need a lawyer?

No lawyer is required for small estate affidavits. However, if you're unsure about values, debts, or legal requirements, consulting an attorney for a few hundred dollars can prevent costly mistakes.

How much does a small estate affidavit cost?

• Notary fee: $15 per signature
• Death certificates: $21 each (order 5-10)
• Recording fees (if real estate): $50-100
• Total typical cost: $100-300

Can asset holders refuse the affidavit?

Asset holders must accept a valid affidavit. California law protects them from liability if they do. However, they can refuse if:

• It's incomplete or incorrect
• 40 days haven't passed
• They have knowledge the estate exceeds threshold
• Someone has filed for formal probate

What if someone else files for probate after I use the affidavit?

Once you've collected assets using a valid affidavit, those assets are transferred to you. However, you may need to account for them in the probate proceeding and ensure proper distribution.

Does using a small estate affidavit avoid estate taxes?

The affidavit is just a transfer mechanism, not a tax avoidance strategy. However, California has no estate tax (as of 2025), and federal estate tax only applies to estates over $15 million (2026 threshold).

Key Takeaways: California Small Estate Affidavit 2026

1. New $208,850 threshold effective April 1, 2025 (up from $184,500)
2. New principal residence provision allows homes up to $750,000 to transfer without probate
3. 40-day waiting period required before using affidavit
4. Fast and cheap: 40-60 days and $100-300 cost vs. 12-18 months and $15,000-68,000+ for probate
5. Personal liability: You're responsible for debts and proper distribution
6. Best for small estates: Larger estates should use living trusts to avoid probate

While small estate affidavits provide a valuable shortcut for modest estates, the best strategy is avoiding probate altogether with proper estate planning. A living trust costs $400-$500 but can save your family tens of thousands of dollars and many months of court involvement.