California Small Estate Affidavit 2025: New $208,850 Threshold Guide
🆕 NEW LAW: Effective April 1, 2025
California's small estate threshold increases from $184,500 to $208,850
For deaths on or after April 1, 2025, estates valued at $208,850 or less can use the simplified small estate affidavit procedure to avoid formal probate.
Additional change: Primary residences valued up to $750,000 can now be transferred without probate using new Probate Code Section 13151.
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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:
- Wait 40 days after death
- Complete small estate affidavit form
- Present affidavit to banks, DMV, etc.
- Asset holders release property to you
It's that simple — if you qualify.
What's New in California Small Estate Law 2025
Change #1: Increased Threshold to $208,850
Effective: April 1, 2025
| Date of Death | Small Estate Threshold |
|---|---|
| Before April 1, 2025 | $184,500 |
| April 1, 2025 and after | $208,850 |
This $24,350 increase means more estates can now avoid probate entirely.
Change #2: New 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!
💰 This New Law Could Save Your Family $20,000-40,000
For estates with a principal residence under $750,000 and modest other assets, this change eliminates the need for expensive probate.
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
💡 Strategic Planning Tip
Smart estate planning can keep your "probate estate" under $208,850 even if you have more assets. Using beneficiary designations, joint tenancy, and living trusts exempts those assets from the calculation.
Example: $400,000 in living trust + $150,000 in TOD bank accounts + $50,000 IRA with beneficiary = $0 probate estate (all exempt!)
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)
⚠️ You're Personally Liable
When you sign a small estate affidavit, you're swearing under penalty of perjury that the information is true. You're also personally liable to:
- Pay decedent's debts (up to value of assets collected)
- Distribute property correctly
- Account to other heirs
If you make false statements or fail to distribute properly, you can be sued and held personally liable.
Special Rules for Real Estate in Small Estates
Real estate requires different procedures:
Option 1: Principal Residence Up to $750,000 (NEW 2025)
Use: Probate Code Section 13151 (effective April 1, 2025)
Form: Affidavit Re Real Property of Small Value (modified for principal residence)
Requirements:
- Property was decedent's principal residence at death
- Value ≤ $750,000
- No other real property in estate
- Wait 40 days after death
- Record affidavit with county recorder
Cost: County recording fees ($50-100)
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:
- Real property value ≤ $69,625
- Wait 6 months after death
- Get court order
- Record with 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.
Small Estate Affidavit vs. Formal Probate
| Feature | Small Estate Affidavit | Formal Probate |
|---|---|---|
| Estate Value Limit | ≤ $208,850 (2025) | Any amount |
| Timeline | 40-60 days | 12-18 months |
| Cost | $0-500 | $15,000-68,000+ |
| Court Involvement | None | Extensive |
| Attorney Required | No | Highly recommended |
| Public Record | Minimal | Fully public |
| Forms Required | 1-2 simple forms | 20+ complex forms |
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 Principal Residence Under $750,000 (New 2025):
- 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 $13.61 million (2024 threshold).
Avoid Probate Entirely with a Living Trust
Small estate affidavits work for small estates, but what if your estate grows beyond $208,850?
A living trust avoids probate regardless of estate size
✓ No value limits ✓ Complete privacy ✓ Immediate transfer ✓ Avoid $15,000-68,000+ probate costs
Create Your California Trust — Just $400-500Attorney-reviewed • Complete in 30 minutes • Save $1,500-$4,500 vs. traditional attorney
Key Takeaways: California Small Estate Affidavit 2025
- New $208,850 threshold effective April 1, 2025 (up from $184,500)
- New principal residence provision allows homes up to $750,000 to transfer without probate
- 40-day waiting period required before using affidavit
- Fast and cheap: 40-60 days and $100-300 cost vs. 12-18 months and $15,000-68,000+ for probate
- Personal liability: You're responsible for debts and proper distribution
- 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.