Probate for Surviving Spouses

I recently had a client, Emily, who was devastated to learn her husband, Mac, had passed away without updating his estate plan. They’d been married for over 30 years, and he’d meticulously planned for everything…except the proper transfer of assets after death. He’d created a trust, but a significant portion of their brokerage account – over $300,000 – had been inadvertently left out. Emily faced over $15,000 in probate fees and a six-month delay in accessing those funds, simply because of an oversight. This is a surprisingly common scenario, and one we address regularly.

Can a Surviving Spouse Avoid Probate Altogether?

The good news is California law offers several avenues for a surviving spouse to avoid the full probate process. The path we take depends heavily on the type and value of the assets involved. Over my 35+ years as both an Estate Planning Attorney and a CPA, I’ve found the key isn’t just avoiding probate, but minimizing tax implications for the surviving spouse. As a CPA, I can immediately address the “step-up in basis” – a critical advantage for inherited assets – and properly value those assets to minimize potential capital gains taxes. Many attorneys lack this combined expertise.

What if My Spouse Had a Trust? Does Everything Automatically Pass?

A properly funded trust is the gold standard. However, as Emily’s case illustrates, even with a trust, assets titled outside the trust are subject to probate. It’s not enough to have a trust; it must be actively funded. This means ownership of assets—bank accounts, brokerage accounts, real estate—must be officially transferred into the name of the trust. If assets are left out, a court proceeding will likely be required to transfer them.

What are My Options for Smaller Estates?

For smaller estates, California offers streamlined procedures. For deaths occurring on or after April 1, 2025, the gross value threshold for using a Small Estate Affidavit (Probate Code § 13100) has increased to $208,850. This procedure allows successors to collect personal property without court involvement. This total MUST NOT include assets held in joint tenancy, trust, or those with named beneficiaries (POD/TOD), but MUST include the value of any real property unless that property is handled via a separate summary procedure.

What About Real Estate – Is There a Fast Track?

Yes. There are two primary routes. Under AB 2016 (Probate Code § 13151), a primary residence valued up to $750,000 qualifies for a ‘Petition for Succession’ rather than full probate administration. This is a court-filed Petition requiring a hearing and a Judge’s Order, though it is significantly faster than full probate. Alternatively, for smaller interests in real property, the Affidavit for Real Property of Small Value (Probate Code § 13200) can be used for real property interests valued at less than $69,625 (the 2025/2026 adjusted limit), successors can file an affidavit with the Court Clerk and record a certified copy with the County Recorder, completely bypassing the need for a hearing.

What if Everything Was in Joint Tenancy?

Joint tenancy is a powerful probate avoidance tool. Assets held in joint tenancy automatically pass to the surviving joint tenant outside of probate. However, it’s crucial to understand that this doesn’t address estate planning concerns like minimizing estate taxes or ensuring assets ultimately pass to the intended beneficiaries beyond the surviving spouse. It simply bypasses probate at the first death.

What if We’re a Registered Domestic Partnership? Do the Rules Change?

California treats registered domestic partners largely the same as spouses for probate and estate planning purposes. The Spousal Property Petition (Probate Code § 13650) applies equally to domestic partners, allowing for the transfer of unlimited assets to a surviving domestic partner without full probate administration, regardless of the estate’s value. It is strictly for assets characterized as community property or quasi-community property.

What if My Spouse Forgot to Retitle an Asset to the Trust?

This is where a Heggstad Petition (Probate Code § 850) comes into play. If a decedent intended an asset to be in their trust (e.g., listed on Schedule A) but failed to retitle it, a Section 850 Petition can obtain a court order confirming the asset as trust property. This ‘cures’ the title defect and avoids a full probate estate for that single asset.

Navigating these options can be complex. Don’t let an oversight lead to unnecessary costs and delays. Proactive estate planning—and regular reviews—are the best safeguards.

What separates an efficient California probate process from a drawn-out conflict over authority and assets?

Success in probate court depends less on the size of the estate and more on the accuracy of the petition and the behavior of the fiduciary. Whether the issue is a forgotten asset, a contested creditor claim, or a disagreement among siblings, understanding the procedural triggers for court intervention is the best defense against prolonged administration.

• Appearances: Prepare for the court hearing in probate.
• Rules: Follow strict probate procedure requirements.
• Organization: Maintain case management logs.

Ultimately, the difference between a routine distribution and a protracted legal battle often comes down to preparation. By anticipating the demands of the Probate Code and addressing potential friction points with beneficiaries and creditors upfront, fiduciaries can navigate the system with greater confidence and lower liability.

Verified Authority on California Probate Alternatives

• Personal Property Affidavit ($208,850 Limit): California Probate Code § 13100 (Small Estate Affidavit)
  For deaths on or after April 1, 2025, the gross value threshold for using a Small Estate Affidavit has increased to $208,850. This procedure allows successors to collect cash, stocks, and personal items without court involvement. Warning: This total MUST NOT include assets held in joint tenancy, trust, or those with named beneficiaries (POD/TOD), but MUST include the value of real property unless handled via a separate summary procedure.
• Primary Residence Succession (AB 2016): California Probate Code § 13151 (Petition for Succession)
  You must distinguish between the Affidavit for Real Property of Small Value (strictly for property <$69,625) and AB 2016. Under AB 2016, a primary residence valued up to $750,000 qualifies for a ‘Petition for Succession’ rather than full probate. This is a court-filed Petition requiring a Judge’s Order, though it is significantly faster than full administration.
• Spousal Property Petition (Unlimited): California Probate Code § 13650 (Spousal Transfers)
  This powerful alternative allows for the transfer of unlimited assets to a surviving spouse or domestic partner without full probate administration, regardless of the estate’s value. It is strictly for assets passing to a spouse and requires the property be characterized as community property or quasi-community property.
• Trust Assets & The “Heggstad” Petition: California Probate Code § 850 (Heggstad Petition)
  If a decedent intended an asset to be in their trust (e.g., listed on Schedule A) but failed to retitle it (the “Oops” factor), a Section 850 Petition can obtain a court order confirming the asset as trust property. This “cures” the title defect and avoids opening a full probate estate for that single asset.
• Vacant Land & Timeshares: California Probate Code § 13200 (Real Property of Small Value)
  For real property interests valued at less than $69,625 (the 2025/2026 adjusted limit), successors can file an Affidavit for Real Property of Small Value with the Court Clerk and record a certified copy with the County Recorder. This completely bypasses the need for a hearing or judge’s order.
• Vehicle & Vessel Transfers (DMV): DMV Form REG 5 (Affidavit for Transfer Without Probate)
  Vehicles and vessels may be transferred outside of probate using the Affidavit for Transfer Without Probate (REG 5). Critically, the value of the vehicle is excluded from the $208,850 small estate calculation, meaning a high-value car does not disqualify an estate from using summary procedures.
• Digital Asset Access (RUFADAA): California Probate Code § 870 (RUFADAA)
  Even in summary administration, digital assets can be locked. Without specific RUFADAA language (Probate Code § 870) in your Will or Trust, service providers like Coinbase and Google can legally deny successors access to digital wallets and accounts, forcing a full probate just to retrieve them.