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Does this estate need probate?

California has several ways to transfer a person’s property after a death. Which one applies depends on what they owned, how it was titled, and what it was worth on the date of death. The limits below apply to deaths on or after April 1, 2025.

Start with how each asset was titled

Some property passes to someone else automatically and does not count toward any of the limits below:

  • Property held in a living trust
  • Accounts and policies with a named beneficiary, including payable-on-death and transfer-on-death accounts
  • Property owned as joint tenants with someone who is still living
  • Real estate with a recorded transfer-on-death deed

Property in the person’s name alone usually does count, and so does their share of anything owned as tenants in common, which does not pass to the other owners. Registered vehicles and a limited amount of unpaid wages are also left out of the count. A will, by itself, does not keep property out of probate.

Five common California options

OptionWhat it can transferValue limitEarliest timingCourt involvement
Small estate affidavitPersonal property, such as bank accounts, investments, and belongingsThe person’s California real and personal property totals $208,850 or less, not counting property that passes automatically or a home transferred by the petition below40 days after the deathNone; the affidavit is given to whoever holds the property
Petition for a primary residenceThe home the person lived inThe home is worth $750,000 or less40 days after the deathA petition and a hearing, shorter than full probate
Affidavit for real property of small valueCalifornia real estateAll of the person’s California real estate, including any home, totals $69,625 or lessSix months after the deathFiled with the court; no hearing
Spousal or domestic partner property petitionProperty going to a surviving spouse or registered domestic partnerNo dollar limitNo waiting periodA petition and usually one hearing
Formal probateProperty that needs court administration because no simpler procedure or automatic transfer appliesNo dollar limitNo minimum waiting period; often takes a year or longer to finishA full court case, with a personal representative appointed

Other procedures can apply in some estates, such as a small estate set-aside for a surviving spouse or minor children when the net estate is $107,900 or less. An estate can use more than one option, for example a petition for the home and an affidavit for bank accounts. Values are gross values on the date of death: debts and mortgages are not subtracted. The limits are next adjusted April 1, 2028. Deaths before April 1, 2025 have lower limits, listed on court form DE-300.

How to work out which applies

  1. Find the original will, if there is one, and list every asset and how it was titled.
  2. Set aside property that passes automatically.
  3. Note anything going to a surviving spouse or registered domestic partner.
  4. Value what is left at its gross value on the date of death, counting only the person’s share.
  5. Compare each total with the limits above.

Two early deadlines

Whoever has the original will must deliver it to the superior court clerk within 30 days after learning of the death. A person named as executor who waits more than 30 days to start probate, without good cause, may lose the right to be appointed.

When to get help

Get advice before filing anything if the titles are unclear, if values are close to a limit, if real estate is involved, or if anyone disputes the will, the trust, or who should inherit. Gathering information after a death is a good place to start organizing.

Sources: Judicial Council form DE-300 (rev. April 28, 2025); Orange County Superior Court: simplified probate procedures; California Courts: guide to probate.

This guide is general information, not legal advice about a particular estate.

Related practice area: Estate Planning and Probate

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