California offers some probate shortcuts for surviving spouses and for "small estates." These procedures make it easier for survivors to collect property left by a person who has died. Inheritors may be able to access the property more quickly, and with less hassle and fees, compared to jumping through the hoops of regular probate. These procedures, which allow you to skip or speed up probate, might loosely be called "summary administration," "small estate probate," or "simplified probate," among other terms.
You likely have access to some of these simplified probate procedures if:
In California, the spouse or registered domestic partner of a deceased person can often inherit property without going through probate. In some cases, such as when inheriting furniture or personal effects, no particular procedure is necessary.
For property that has a title document—such as real estate—the surviving spouse can usually either:
If an employer owes the deceased person compensation—such as unpaid salary or unused vacation days—a surviving spouse can also:
If the spouses owned property together with right of survivorship—either as joint tenancy property or community property with right of survivorship—it will pass automatically to the surviving spouse without the need for probate. Although these ownership methods bypass probate, the surviving spouses might still need to retitle the property in their sole name. To do that, the surviving spouse can usually prepare a simple affidavit (sworn statement) and attach the death certificate for the deceased spouse. For real estate, this affidavit is usually accompanied by another simple document called a Preliminary Change of Ownership Report, and both will need to be "recorded"—that is, filed with the land records office in the county where the real estate is located. A new deed is not necessary.
For property that's not owned with right of survivorship, the surviving spouse or registered domestic partner can file a Spousal or Domestic Partner Property Petition with the probate court. This procedure does require several steps, but it is still more streamlined than regular probate. Additionally, there's no limit on the value of property that can be transferred this way. In other words, a probate court can approve a petition for even a $2 million home, and declare it as belonging to the surviving spouse. (But remember, if the property is owned with right of survivorship, you won't need to go this route and can use a simpler affidavit instead.)
A spousal property petition can be filed for assets like real estate, stocks and bonds, vehicles, and bank accounts. The petition involves the following steps:
If an employer owed the deceased person compensation such as unpaid salary or unused vacation days, the surviving spouse or registered domestic partner may also collect up to $18,450 (for deaths on or after April 1, 2022) of the compensation using a simple affidavit. (Probate Code § 13600.) The spouse will also usually need to prove their identity. The process should be quick and straightforward.
California also offers small estate procedures that allow inheritors to use a streamlined version of probate when the value of the assets left behind is less than a certain amount. "Small estates" are defined as estates whose value is no more than $184,500 (for deaths on or after April 1, 2022). This value rises every three years to account for inflation, and was previously $166,250.
You might be surprised to discover that even relatively large estates can qualify for these procedures. Why? Only the "probate estate" is counted. This means that many assets are not included, such as:
(Cal. Prob. Code § 13050.) In other words, a very large estate can still qualify as a "small" estate in California if many of the assets do not need to be factored into the calculation.
Example: Lamont, a California resident, dies and leaves behind a home worth $900,000 using transfer-on-death deed. He also leaves behind $200,000 in life insurance proceeds, $150,000 in a bank account owned with his brother, a car worth $15,000, and a $200,000 condo in Oregon. He also has $20,000 in a savings account with no named beneficiary and some furniture worth $5,000. The home, life insurance proceeds, joint bank account, car, and out-of-state condo will all pass outside of probate in California. The remaining property—the $20,000 in the savings account and the furniture—are well under the maximum value for a "small estate" in California, so Lamont's estate can take advantage of the small estate probate procedures.
If your estate qualifies as a small estate, you can use one of these procedures:
If the total probate estate does not exceed $184,500 (this is the maximum value for deaths occurring on or after April 1, 2022), you can use the small estate affidavit to collect all property other than real estate. You'll prepare a sworn document, called an Affidavit for Collection of Personal Property, stating that you're entitled to a certain asset. When the person or institution holding the property—for example, a bank where the deceased person had an account—receives the affidavit and a copy of the deceased person's death certificate, it releases the asset.
Waiting period: You must wait 40 days after the death to present the affidavit to the holder of the property. (Cal. Prob. Code § § 13050 and 13100.) Note this is a much faster wait than for full probate proceedings, which can easily range from 7 months to 18 months in California.
If the estate includes real estate that doesn't exceed $61,500 in value (again, this is the value for deaths occurring on or after April 1, 2022), you can file an Affidavit re: Real Property of Small Value (DE-305) with the probate court. Again, this affidavit amounts to an out-of-court procedure you can use to collect the property. You'll also have to record the affidavit with the County Clerk-Recorder in the county where the real estate is located.
Waiting period: You must wait six months after the death to file the affidavit. (Cal. Prob. Code §§ 13200 to 13208.)
The last probate shortcut is a petition for the probate court to make an order that states you have the right to the property. It's available for probate estates not exceeding $184,500, and can be used to transfer both real estate and personal property. Personal property is essentially all property that is not real estate. If the estate does not have any real estate in it and solely consists of personal property, you should use the simpler small estate affidavit procedure (above) instead.
The petition to determine succession to real property includes these steps:
Waiting period: You must wait 40 days after the death to file the petition. (Cal. Prob. Code § 13151.)
Even though these probate procedures are much simpler than traditional probate in California, they can still be fairly complicated. For detailed, step-by-step guidance, refer to Nolo's book How to Probate an Estate in California, by Lisa Fialco.
You can also learn more about estate planning, probate, and estate administration with these other books by Nolo:
For more on California estate planning issues, see our section on California Estate Planning.