Affidavit for Small Value Real Property

I recently had a client, David, come to me in a panic. His mother had passed away unexpectedly, owning a small cabin in the mountains valued at $65,000. He’d diligently prepared a will, but the emotional toll of grief was compounded by the looming complexity of probate. He was terrified of being stuck in court for months, draining the cabin’s value with legal fees, when all he wanted was to transfer the property to his sister as his mother wished. The potential cost – both financially and emotionally – was devastating. After 35 years as both an Estate Planning Attorney and a CPA, I’ve seen this scenario play out far too often, and thankfully, there are often more streamlined solutions than full probate.

Can I avoid probate altogether for a small piece of real estate?

Yes, potentially. California offers a procedure known as the Affidavit for Real Property of Small Value (Probate Code § 13200). This allows you to transfer ownership of real property without going through the formal, and often lengthy, probate process – but it’s subject to specific limitations. 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. However, this affidavit applies specifically to the value of real property and does not include assets held in joint tenancy, trust, or those with named beneficiaries (POD/TOD).

What’s the process for using the Affidavit for Real Property of Small Value?

The process is relatively straightforward. You complete an affidavit, attesting to the value of the property being less than the current statutory limit – currently $69,625 (the 2025/2026 adjusted limit). You’ll need to include a copy of the death certificate and the will (if one exists), along with a description of the property. Once completed, the affidavit is filed with the Court Clerk in the county where the property is located, and a certified copy is recorded with the County Recorder. This effectively transfers ownership to the heir or beneficiary designated in the will or by intestate succession laws.

How does this differ from other summary probate procedures?

California provides several options for avoiding full probate, each with its own requirements and limitations. For primary residences, a surviving spouse may utilize the Spousal Property Petition (Probate Code § 13650), allowing for the transfer of unlimited assets. Alternatively, AB 2016 (Probate Code § 13151) allows for a Petition for Succession for primary residences valued up to $750,000 – a court-filed petition requiring a hearing and a judge’s order, but still faster than full probate. It’s crucial to understand that the Affidavit for Small Value is specifically for properties below the $69,625 limit and doesn’t require court approval, making it the quickest and least expensive option for qualifying assets.

What about assets left out of a trust, or those with unusual titles?

Sometimes, despite careful planning, an asset is inadvertently left out of a trust, or the title isn’t properly aligned with the trust’s ownership. 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. We also regularly utilize Transfer on Death Deeds, which are a valid alternative to probate for residential property, but it MUST be recorded within 60 days of notarization to be valid. Furthermore, beneficiaries assume liability for the decedent’s debts up to the value of the property for 3 years after death.

How does my CPA background help with these situations?

As a CPA as well as an attorney, I bring a unique perspective to estate planning. Understanding the step-up in basis, capital gains implications, and accurate property valuation is critical. A seemingly simple transfer can have significant tax consequences if not handled correctly. Proper valuation ensures compliance with tax laws and minimizes potential liabilities for your heirs. This combined knowledge allows me to provide comprehensive advice that addresses both the legal and financial aspects of estate administration, saving my clients time, money, and unnecessary stress.

What causes California probate cases to spiral into delay, disputes, and extra cost?

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.

California probate is most manageable when authority is documented early, assets are classified correctly, and procedure is followed consistently from petition through closing. When the process is approached with realistic expectations about notice, claims, accounting, and dispute risk, the estate is more likely to move toward closure without avoidable conflict or delay.

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.