California Small Estate Affidavits: A Complete Guide to Collecting Assets Without Probate
Updated: Oct 8
What a small estate affidavit does
If a California resident dies owning $208,850 or less in probate assets, the people who inherit can usually collect those assets with a sworn, one-to-three-page affidavit instead of a court case. That figure applies to every death on or after April 1, 2025. The procedure lives in Probate Code sections 13100 through 13116.
The affidavit is a private document. Nothing is filed with the court, there is no judge, no hearing, no published notice, and no statutory attorney or executor fee. The heir signs the affidavit under penalty of perjury, attaches a certified death certificate, and hands it to whoever is holding the asset: a bank, a credit union, a brokerage, an employer, a landlord holding a security deposit, or a relative holding the decedent's jewelry. The holder then pays or delivers the asset directly to the heir.
Compare that to a formal probate. A full administration in Los Angeles County commonly takes nine to eighteen months, requires a filing fee, a newspaper notice, a court-appointed personal representative, and (unless waived) a bond. Statutory fees for the attorney and the personal representative are each calculated on the gross estate under Probate Code sections 10800 and 10810, before debts. For an estate near the small-estate line, those two fees alone would run into five figures. The affidavit procedure exists so modest estates do not lose a meaningful share of their value to process.
The tradeoff is that the affidavit does less. It reaches personal property only, not real estate. It depends on the cooperation of each holder. And it gives the heir no court order to point to if a creditor or another relative later claims the heir took too much. The sections below explain when the procedure fits, exactly what the affidavit must say, and where people go wrong.
The dollar limit: $208,850 for deaths on or after April 1, 2025
The limit that applies is the one in effect on the date of death, not the date the affidavit is signed or presented. A person who died in March 2025 is measured against $184,500 even if the family signs the affidavit in 2026.
Since 2022, Probate Code section 890 has required the Judicial Council to adjust every summary-succession figure every three years by the change in the Consumer Price Index, rounded to the nearest $25. The adjusted amounts are published on Judicial Council form DE-300. The last adjustment took effect April 1, 2025; the California Courts self-help center states the next one is scheduled for April 1, 2028. Some websites list a different figure for deaths in 2026. That is wrong: there was no 2026 adjustment.
Procedure (Probate Code) | Death before 4/1/2022 | Death 4/1/2022 – 3/31/2025 | Death on or after 4/1/2025 |
Small estate affidavit for personal property (§§ 13100–13101) | $166,250 | $184,500 | $208,850 |
Affidavit re real property of small value (§ 13200) | $55,425 | $61,500 | $69,625 |
Petition to determine succession to real property / primary residence (§§ 13151–13154) | $166,250 | $184,500 | $750,000 (primary residence only) |
Unpaid wages excluded from the estate total (§ 13050(c)) | $16,625 | $18,450 | $20,875 |
Spouse's collection of unpaid wages by affidavit (§§ 13600–13601) | $16,625 | $18,450 | $20,875 |
Small estate set-aside for spouse and minor children (§§ 6602, 6609) | $85,900 | $95,325 | $107,900 |
Source: Judicial Council form DE-300 (rev. April 28, 2025); California Courts, summary-succession maximums.
Two practical consequences follow. First, the figure is gross value. Probate Code section 13100 measures "the gross value of the decedent's real and personal property in this state." A $230,000 brokerage account with a $40,000 margin loan does not qualify; debts and liens are not subtracted. Second, for any death on or after April 1, 2022, Probate Code section 13101(f) requires the DE-300 list in effect on the date of death to be attached to the affidavit. An affidavit without it is facially incomplete, and a careful bank will reject it.
What counts toward the limit, and what does not
Only the decedent's probate property located in California counts. Probate Code section 13050 strips out most of what people own at death, which is why many estates with a house, a car, a 401(k), and a living trust still qualify.
Counted toward the $208,850:
• Bank, credit union, and brokerage accounts in the decedent's sole name with no payable-on-death (POD) or transfer-on-death (TOD) beneficiary
• California real estate in the decedent's sole name or held as a tenant in common, at gross fair market value (the affidavit cannot transfer it, but it still counts)
• Stocks and bonds held in certificate form or with a transfer agent
• Life insurance, annuities, and retirement accounts payable to the estate, or whose named beneficiary died first with no contingent
• Tax refunds, security deposits, refunds of prepaid rent or insurance premiums
• Tangible personal property: furniture, jewelry, art, collectibles, tools
• Claims and receivables owed to the decedent, including promissory notes and deeds of trust the decedent held as lender
Excluded from the count (§ 13050):
• Property held in joint tenancy, and any life estate or other interest that ended at death
• Property in a trust the decedent could revoke, including a living trust
• Multiple-party accounts to the extent the funds belong to a surviving co-owner, POD payee, or beneficiary
• Community and separate property that passes to a surviving spouse or registered domestic partner under § 13500
• Vehicles registered with the DMV, vessels numbered under the Vehicle Code, and registered manufactured homes, mobilehomes, truck campers, and floating homes, at any value
• Amounts owed for service in the U.S. Armed Forces
• Up to $20,875 of unpaid salary, wages, or accrued vacation (deaths on or after April 1, 2025)
• A primary residence included in a petition under § 13151 (see the real property section below)
• Real and personal property located outside California
The vehicle exclusion matters more than people expect. A $70,000 truck in the decedent's sole name does not count against the limit at all; the heirs transfer it separately at the DMV with an Affidavit for Transfer Without Probate (form REG 5). The same is true of a registered mobilehome through the Department of Housing and Community Development.
The out-of-state exclusion cuts both ways. A Nevada condominium does not count here, but the family will need to clear title to it under Nevada's own procedure, which may require ancillary probate there.
Value every item at fair market value as of the date of death. Use date-of-death statements for accounts, a recent comparable-sales analysis or appraisal for real estate, and realistic resale value (not replacement cost) for household goods. If the total is close to the line, get a written appraisal: an affidavit that overstates eligibility is signed under penalty of perjury, and Probate Code sections 13109 through 13111 make the person who collected answerable to creditors, to anyone with a superior right, and to any personal representative later appointed.
Who signs: the "successor of the decedent"
The affidavit is signed by the person or people who inherit the particular asset, called the "successor of the decedent" in Probate Code section 13006. Who that is depends on whether there was a will.
• With a will: the beneficiary, or all of the beneficiaries, who take that item under the will. If the will gives the item to a trust (a "pour-over" will), the trust is the beneficiary and the trustee signs.
• Without a will: the person or all of the persons who take the item under California's intestacy statutes, Probate Code sections 6401 and 6402. Typically that is the surviving spouse or partner as to separate property shared with children, then children, then parents, then siblings, and so on.
The word all is the trap. If three adult children inherit equally, all three are successors to each account, and all three must sign (Probate Code section 13101(b) lets the statements be adapted for multiple signers). One sibling cannot collect the whole account on a solo affidavit and promise to share later. A bank that pays a single signer while two others exist is following a defective affidavit, and the signer is personally liable to the other two under section 13110.
Sometimes the successor cannot sign personally. Probate Code section 13051 lets these representatives sign on the successor's behalf without a court order:
Successor's situation | Who may sign for them |
Minor or adult with a court-appointed estate guardian or conservator | The guardian or conservator of the estate |
A trust (including a living trust named in a pour-over will) | The trustee |
Minor beneficiary where the will names a UTMA or UGMA custodian | The custodian, until the custodianship ends |
Beneficiary who signed a durable power of attorney | The agent (attorney-in-fact) |
Estate being administered in another state | That state's personal representative, as provided in Probate Code § 12570 and following |
A minor child inheriting without a will, a guardian of the estate, or a UTMA custodian has no one with authority to sign. In that situation the family usually needs a guardianship of the estate or a court order before collecting the child's share. A parent's status as parent is not enough.
A creditor, landlord, or funeral home is not a successor and cannot use the affidavit, even if owed money. Neither can a named executor acting in that role: the executor's authority comes only from letters issued by the court.
Before you start: the 40-day wait and other prerequisites
The affidavit cannot be used until 40 days have passed since the date of death. Count from the day after death, and to be safe sign no earlier than day 41: for a death on September 1, 2026, the 40th day is October 11, so sign on or after October 12, 2026. The affidavit itself recites that the 40 days have run "as shown in a certified copy of the decedent's death certificate," so a signature dated on day 39 is a false statement under penalty of perjury.
The waiting period gives creditors, other heirs, and anyone holding a later will a window to open a probate if they want one. Use it to gather what you will need:
• ☐ Certified death certificates. Order several from the county recorder or the funeral home. Each holder will want its own certified copy; photocopies are not accepted.
• ☐ Form DE-300. Print the current Judicial Council list of adjusted dollar amounts from the California Courts forms page. It must be attached for any death on or after April 1, 2022.
• ☐ The will, if any. It is not filed or attached, but it determines who the successors are. Note that anyone holding an original will must deliver it to the superior court clerk within 30 days of learning of the death (Probate Code § 8200), even if no probate is opened.
• ☐ An asset inventory with date-of-death values. List every asset, its value, and how it is titled, so you can apply the exclusions in § 13050 and confirm the total is under the limit.
• ☐ Account statements and contact information for every holder you will approach.
• ☐ Government-issued photo ID for every signer.
Two conditions must also be true on the day you sign:
1. No probate is pending or completed in California. The affidavit recites that no proceeding "is now being or has been conducted" for administration of the estate. If someone has already opened a probate, the affidavit is unavailable unless the court-appointed personal representative consents in writing; then the consent and a copy of the representative's letters are attached instead (§ 13101(a)(4)(B), (e)).
2. No one has a superior right to the property. If there is a later will, a disputed heir, or a spouse with a community property claim, resolve it first.
Medi-Cal notice. If the decedent, or the decedent's predeceased spouse, received Medi-Cal benefits, Probate Code section 215 requires notice of death, with a death certificate, to the Director of Health Care Services within 90 days of death. When there is no estate attorney, that duty falls on the beneficiary or the person in possession of the decedent's property, which includes the person collecting by affidavit. The Department may then assert an estate recovery claim against the assets collected.
Preparing the affidavit: the eleven required statements
There is no mandatory Judicial Council form for the personal-property affidavit. Any document works if it contains every statement Probate Code section 13101(a) requires, signed as an affidavit or as a declaration under penalty of perjury under California law. Many banks hand out their own versions, and some superior courts post sample forms; all of them track the same eleven items.
1. The decedent's name. Use the full legal name exactly as it appears on the account, plus any other names the decedent used.
2. Date and place of death. Match the death certificate.
3. The 40-day statement: "At least 40 days have elapsed since the death of the decedent, as shown in a certified copy of the decedent's death certificate attached to this affidavit or declaration."
4. No-probate statement, or consent. Either "No proceeding is now being or has been conducted in California for administration of the decedent's estate," or that the personal representative has consented in writing.
5. The value statement: that the current gross fair market value of the decedent's California real and personal property, excluding § 13050 property and any property in a § 13151 petition, does not exceed the applicable dollar amount. Insert the figure for the date of death, which is $208,850 for deaths on or after April 1, 2025.
6. A description of the property to be paid or delivered: bank name and last four digits of the account, number of shares and CUSIP, or a specific description of tangible items.
7. The name of the successor to the described property.
8. The signer's capacity: either that the signer is the successor under § 13006, or that the signer is authorized under § 13051 to act for the successor (guardian, conservator, trustee, custodian, agent, or sister-state representative).
9. "No other person has a superior right to the interest of the decedent in the described property."
10. A request that the property be paid, delivered, or transferred to the signer.
11. The penalty-of-perjury affirmation under the laws of the State of California.
Attachments. Every affidavit carries a certified death certificate (§ 13101(d)) and, for deaths on or after April 1, 2022, the DE-300 list in effect on the date of death (§ 13101(f)). If a personal representative consented, attach the written consent and a copy of the letters (§ 13101(e)). If the asset is a promissory note secured by a recorded deed of trust, the affidavit must also satisfy § 13106.5 so the successor can record it and step into the lender's position.
Signing and notarization. The statute accepts either a notarized affidavit or an unnotarized declaration under penalty of perjury. In practice, notarize it. Under § 13104 the holder must receive reasonable proof of each signer's identity, and a notary's certificate of acknowledgment satisfies that requirement on its own. Without one, each signer must appear in person at the holder with acceptable ID, and the holder must note the ID on the affidavit. A notarized affidavit can be mailed to an out-of-state brokerage; an unnotarized one usually cannot.
One affidavit per holder. Prepare a separate original for each bank, brokerage, or other holder, each describing only the property that holder has. All successors to that property sign each one. Keep a complete copy of every affidavit you deliver, with the date of delivery: the three-year limitation periods discussed below run from presentation.
Presenting the affidavit to banks, brokers, and other holders
A holder that receives a compliant affidavit must pay or deliver the property, and the law protects it for doing so. Probate Code section 13105(a) states that the signers "are entitled" to the described property, and that a transfer agent "shall change the registered ownership" of a security on the corporation's books.
The holder's protection is what makes institutions willing to cooperate. Under section 13106, receipt of a compliant affidavit discharges the holder from further liability for the property. The holder "may rely in good faith on the statements" in the affidavit and "has no duty to inquire into the truth" of them. The holder is also not liable for California taxes because it paid. The risk of a false statement shifts entirely to the person who signed.
What to expect at each type of holder:
Holder | Usual practice |
Bank or credit union | Estate-services or deceased-customer unit reviews the package; many prefer their own affidavit form but must accept a compliant one. Funds are issued by check payable to the successors, or split among them. |
Brokerage | Requires a notarized affidavit and often a letter of instruction and new-account paperwork in the successor's name; securities are re-registered or moved in kind. |
Transfer agent (certificated stock) | Often asks for a Medallion signature guarantee from the successor's bank in addition to the notarized affidavit. |
Employer | Pays final wages; up to $20,875 of unpaid compensation is excluded from the estate total, and a surviving spouse can collect it separately under §§ 13600–13601. |
Landlord, insurer, utility | Refunds of deposits, unearned premiums, and credit balances are paid to the successor on the affidavit. |
Family member or friend holding tangible items | Deliver the affidavit; the person holding the item is a "holder" like any institution. |
Safe deposit boxes. The affidavit can be used to collect a box's contents. Separately, Probate Code section 331 lets a person who holds the key, with a death certificate, open the box in the presence of a bank employee to look for a will or trust and inventory the contents, before any affidavit is ready.
When a holder refuses. Holders sometimes stall, ask for documents the statute does not require, or insist on letters of administration. Start by asking which statutory requirement the holder believes is missing. If the affidavit is compliant and the holder still refuses "within a reasonable time," section 13105(b) lets the successor sue to compel payment, and the court "shall award reasonable attorney's fees" if the holder acted unreasonably. A short letter citing sections 13105 and 13106 resolves most refusals without a lawsuit.
Real estate: what the affidavit cannot do, and the procedures that can
The section 13100 affidavit transfers personal property only. A title company will not insure a deed from an heir who holds nothing but a small estate affidavit, and the county recorder has no procedure for recording one. California real estate in the decedent's name passes through one of three other routes, depending on its value and use.
Procedure | What it transfers | Limit (deaths on/after 4/1/2025) | Earliest start | Court involvement | Judicial Council form |
Small estate affidavit (§ 13100) | Personal property only | $208,850 gross, all California probate property | 40 days after death | None | None required; attach DE-300 |
Affidavit re real property of small value (§ 13200) | All California real property in the estate | $69,625 gross, all California real property combined | 6 months after death | Filed with the clerk; no hearing | DE-305 |
Petition to determine succession to primary residence (§ 13151) | The decedent's primary residence | $750,000 gross value of the residence | 40 days after death | Petition, notice, and hearing; court order | DE-310 |
Spousal or domestic partner property petition (§ 13650) | Property passing to a surviving spouse or partner | No dollar limit | Any time | Petition, notice, and hearing; court order | DE-221 |
Formal probate | Everything | No limit | Any time | Full administration | DE-111 and others |
Sources: Probate Code § 13200 (FindLaw); Probate Code § 13151 (FindLaw); California Courts, summary-succession maximums.
The small-value real property affidavit (§ 13200). This is for a vacant lot, a cemetery plot, a fractional interest in inherited land, or a timeshare. It requires a six-month wait, a notarized acknowledgment for every signer, an inventory and appraisal by a probate referee, a copy of any will, and a sworn statement that funeral expenses, last-illness expenses, and all unsecured debts have been paid. After the clerk files it, the successor records a certified copy in the county where the land sits.
The primary-residence petition (§ 13151). Assembly Bill 2016 changed this procedure for deaths on or after April 1, 2025. The limit rose to $750,000, measured by the gross value of the home alone, and the procedure now applies only to the decedent's primary residence in California. The successor files a petition in the superior court, delivers notice to each heir and devisee within five business days of filing, and attends a hearing. The court's order is recorded and serves as the successor's title.
The two procedures work together. Section 13100 expressly excludes property included in a § 13151 petition from the $208,850 count. A decedent who left a $690,000 house in Gardena and $150,000 in bank accounts no longer needs a probate: the heirs petition for the house under § 13151 and collect the accounts by affidavit. Before 2025, that same estate would have gone through formal administration.
Mortgaged property. The $750,000 and $69,625 figures are gross values. A home worth $800,000 with a $500,000 mortgage does not qualify for the § 13151 petition, even though the equity is only $300,000. Also note that the petition gives the successor title, not freedom from the loan; federal law (the Garn-St Germain Act) generally bars the lender from accelerating the loan solely because title passed to a relative on death.
After you collect: personal liability for debts and to other heirs
The person who collects by affidavit takes the property subject to the decedent's debts and to the rights of anyone entitled to more. Avoiding probate does not avoid creditors. Three provisions define the exposure.
Creditors (§ 13109). The successor is personally liable for the decedent's unsecured debts, which section 13100.5(c) defines to include funeral expenses, last-illness medical bills, and wage claims. A creditor can sue the successor as if suing the decedent, and the successor can raise any defense the decedent had. Liability is capped at the fair market value of what the successor collected, measured when the affidavit was presented, less liens on it. Claims are still subject to the one-year limitation period of Code of Civil Procedure section 366.2, which runs from the date of death.
Heirs with a superior right (§ 13110). If someone else was entitled to the property, such as an omitted sibling, a beneficiary under a later will, or a spouse with a community property interest, the successor is personally liable to that person for the property's value at presentation, plus income it earned, plus 7 percent annual interest from any sale. If the successor obtained the property by fraud, liability is three times its value.
A later probate (§ 13111). If a probate is opened after all, the personal representative can demand the property back. The successor must return it or, if it has been spent or sold, pay its value plus 7 percent interest. Here too, fraud means treble restitution.
Claims under sections 13110 and 13111 are barred three years after the affidavit was presented or three years after discovery of fraud, whichever is later, and the period is not tolled for any reason. That is why the copy of each affidavit, with its presentation date, matters.
Protecting yourself:
• Pay or reserve for known debts, especially the funeral and final medical bills, before distributing among siblings.
• Check whether the decedent received Medi-Cal, and give the § 215 notice within 90 days if so.
• Do not sign the "no superior right" statement if you know of a later will, an unlocated heir, or a disputed spousal claim.
• Keep records of every dollar collected and paid out for at least three years.
• If a probate is opened, returning the property to the estate ends personal liability under the provisions above (§§ 13109(c), 13110(d), 13111(g)).
A worked example, and the mistakes that sink affidavits
A widowed Torrance resident dies without a will on May 10, 2026, leaving two adult children. Her estate looks large at first glance, but most of it never enters the count.
Asset | Date-of-death value | Counts toward $208,850? | Why |
House held in her living trust | $850,000 | No | Revocable trust property (§ 13050(a)(1)) |
401(k) naming both children as beneficiaries | $120,000 | No | Passes to named beneficiaries outside probate |
Toyota registered in her name | $18,000 | No | DMV-registered vehicle (§ 13050(b)(1)); transfer with DMV form REG 5 |
Final paycheck and accrued vacation | $6,200 | No | Under the $20,875 wage exclusion (§ 13050(c)(2)) |
Certificate of deposit, sole name | $96,500 | Yes | Probate asset |
Brokerage account, sole name, no TOD | $51,000 | Yes | Probate asset |
Checking account, sole name | $42,300 | Yes | Probate asset |
Household goods and jewelry | $4,000 | Yes | Tangible personal property |
State tax refund | $1,150 | Yes | Money due the decedent |
Total counted | $194,950 |
| Under the limit by $13,900 |
Both children are her successors under the intestacy statute, so both sign. They prepare two notarized affidavits, one for the bank holding the CD and checking account and one for the brokerage, each with a certified death certificate and the April 2025 DE-300 attached. The 40th day after death is June 19, 2026, so they sign on June 22. The bank issues two checks, and the brokerage moves the shares into an account for each child. Total court costs: zero.
Now suppose that in August a statement arrives for a forgotten $20,000 savings account. The counted total becomes $214,950, and the estate never qualified. The value statement in the June affidavits was false when signed. The children are exposed under sections 13110 and 13111 if anyone with a superior right, or a later-appointed personal representative, pursues them, and the forgotten account itself now requires a probate or another procedure. The lesson: complete the inventory before signing anything.
The mistakes that come up most often:
1. Using the wrong year's limit. The figure is fixed by the date of death. Using $208,850 for a February 2025 death overstates eligibility by $24,350.
2. Subtracting debts. The test is gross value. Mortgages, liens, and credit card balances are not deducted.
3. Forgetting to count California real estate. A $90,000 cabin outside a trust counts toward the $208,850 even though the affidavit cannot transfer it.
4. Omitting the DE-300 attachment. It is mandatory for every death on or after April 1, 2022.
5. Signing too early. Day 40 must be complete. Signing on day 38 makes the 40-day recital false.
6. Leaving out a co-successor. One heir collecting a jointly inherited account alone, intending to share later, is personally liable to the others.
7. A parent signing for a minor heir. Parenthood alone is not authority under § 13051; a guardian of the estate, a will-appointed custodian, or a court order is needed.
8. Ignoring creditors and Medi-Cal. Distributing everything, then receiving a final hospital bill or a Department of Health Care Services claim, leaves the heirs paying from their own pockets up to the value received.
9. Treating the affidavit as a deed. It does not transfer real estate. Use § 13151, § 13200, or probate.
Frequently asked questions
Do I file the small estate affidavit with the court? No. The section 13100 affidavit is delivered directly to each holder of the property. Only the real-property procedures under sections 13151 and 13200 involve the court.
How long does it take? The affidavit cannot be signed until day 40 has passed. After that, most banks pay within two to six weeks of receiving a complete package; brokerages and transfer agents can take longer.
What does it cost? There is no court filing fee. Expect notary fees (California caps them at $15 per signature), the cost of certified death certificates, and any appraisal you choose to obtain.
Can I use it if a probate case has already been opened? Only if the court-appointed personal representative consents in writing. Attach the consent and a copy of the letters.
Does life insurance count? Only if it is payable to the estate, or the named beneficiary died first and there is no contingent. Insurance payable to a living named beneficiary is excluded.
Can I use the affidavit for a car? You do not need to. Vehicles are excluded from the count, and the DMV transfers them on its own Affidavit for Transfer Without Probate (form REG 5).
The decedent lived in another state but had a California bank account. Can I use it? The affidavit reaches property located in California, and the limit measures only California property. Holders may ask additional questions about domicile, and assets in the other state follow that state's rules.
Does California have an inheritance tax? No. The decedent's final state and federal income tax returns are still due, and the successors should keep funds available for any balance owed.
Can a surviving spouse use the affidavit? Yes, as to property the spouse inherits. But property passing to a surviving spouse is excluded from the count, and a spousal property petition (form DE-221) often produces a cleaner court order, especially for real estate.
What if a bank insists on letters of administration? Ask what statutory element is missing. If none is, cite Probate Code sections 13105 and 13106 in writing. A holder that unreasonably refuses can be ordered to pay the successor's attorney's fees.
When to talk to a California attorney
The affidavit is designed for families to use on their own, and most uncomplicated estates can. Get advice before signing if any of the following is true:
• The counted total is within roughly 10 percent of the limit, or any asset's value is uncertain.
• Any heir is a minor, incapacitated, or cannot be located.
• There is a will that may be contested, more than one will, or family disagreement over who inherits.
• The decedent owned California real estate outside a trust.
• The decedent's debts may exceed the assets, or the decedent received Medi-Cal.
• A surviving spouse may have community property claims to assets in the decedent's name.
• The decedent lived in, or owned property in, another state.
This article is general information about California law as of October 2026, provided by CaliForms for self-help use. It is not legal advice and does not create an attorney-client relationship. Dollar thresholds adjust every three years under Probate Code section 890; confirm the figure for the date of death on the current Judicial Council form DE-300 before relying on it.
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