Avoiding Probate Without a Will

I recently met with Emily, a distraught woman whose mother passed away unexpectedly. Her mother had a valid trust, but a crucial codicil – the document amending the trust – was never properly signed. Because of that single, overlooked signature, the entire estate was now facing full probate, racking up legal fees and delaying access to funds for Emily and her siblings. The cost? Easily $30,000 or more, just to administer an estate that could have been settled administratively. This is a surprisingly common scenario, and it highlights the importance of understanding your options for avoiding probate, even – and especially – if a will or trust isn’t perfectly executed.

What Happens If Someone Dies Without a Will or Trust in California?

Many people believe that a trust is the only way to bypass probate. That’s not necessarily true. California law provides several streamlined procedures for transferring assets without a court-supervised probate process. However, these procedures have strict requirements, and it’s easy to inadvertently disqualify an estate from using them. As an attorney and CPA with over 35 years of experience, I’ve seen countless estates needlessly subjected to the full probate process due to minor oversights. My CPA background is particularly beneficial here, as it allows me to address the complex tax implications of each transfer, maximizing the step-up in basis for heirs and minimizing potential capital gains liabilities. We focus not just on avoiding probate, but also on optimizing the tax benefits for your family.

Can I Transfer Assets Directly to My Heirs After Death?

Yes, under certain circumstances. The key is proper ownership and beneficiary designations. Assets held in joint tenancy with right of survivorship automatically pass to the surviving owner, bypassing probate entirely. Similarly, accounts with Payable on Death (POD) or Transfer on Death (TOD) designations transfer directly to the named beneficiary. However, it’s crucial to remember that these assets are not included when calculating whether an estate qualifies for simplified procedures like the Small Estate Affidavit. This is a common mistake. An estate might appear to be small enough, but once you add in joint accounts or POD/TOD assets, it exceeds the threshold.

What is the Small Estate Affidavit and When Can I Use It?

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 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 if I Only Own a Home? Can My Family Avoid Probate?

There are a couple of paths here. California offers both the Affidavit for Real Property of Small Value and AB 2016. 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 involves filing a petition with the court and obtaining a judge’s order, making it more complex than the Section 13100 affidavit, but still significantly faster than full probate. 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 About Vacant Land or Timeshares?

The Affidavit for Real Property of Small Value (Probate Code § 13200) is the appropriate tool for these assets, provided their value falls below the current threshold of $69,625.

What If My Spouse Passes Away?

California law is very favorable to surviving spouses. The Spousal Property Petition (Probate Code § 13650) allows for the transfer of unlimited assets to a surviving spouse without full probate administration, regardless of the estate’s value. It is strictly for assets passing to a spouse/domestic partner and requires the property be characterized as community property or quasi-community property.

I Forgot to Transfer an Asset Into My Trust – Now What?

This is the “Oops” factor, and it’s more common than you might think. 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 (Probate Code § 850) 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.

Are Transfer on Death Deeds a Good Option?

A Revocable Transfer on Death Deed is 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.

What About Cars and Boats?

Vehicles and vessels may be transferred outside of probate using the Affidavit for Transfer Without Probate (DMV Form REG 5). 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.

How do enforcement rules in California probate court shape outcomes for heirs and fiduciaries?

California probate is designed to provide court-supervised transfer of property, yet cases often break down when authority is unclear, required steps are missed, or disputes arise over assets, notice, and fiduciary conduct. When the process is misunderstood, families can face avoidable delay, escalating conflict, and increased exposure to creditor issues, hearings, or litigation before the estate can close.

To protect against specific family risks, review heir disputes without a will, check for omitted heirs and pretermitted children, and be vigilant for signs of financial abuse concerns.

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.