The Small Estate Affidavit in 2026: California\x27s $208,850 Threshold and When It Actually Works

Current as of July 2026

Your father died last month. He had a checking account with $47,000, a savings account with $12,000, and a car worth about $8,000. He had no trust, no will, and no joint owner on any of it. The bank says you need “probate paperwork.” A friend tells you probate takes a year and costs tens of thousands. You are now imagining a drawn-out court process over $67,000 in assets.

You probably don’t need probate. California has a streamlined procedure for exactly this situation, and as of April 2025, the qualifying thresholds are higher than they’ve ever been.

What it is (and isn’t)

The small estate affidavit is a statutory shortcut. Under Probate Code § 13100, a person entitled to inherit personal property from a decedent can collect that property by presenting a signed declaration to the holder (a bank, brokerage, DMV, employer) instead of going through probate court. No judge, no petition, no hearing, no letters testamentary.

It is not a workaround for contested estates. It is not a substitute for full estate planning. It does not clear title to real property (that requires a separate procedure). And it does not protect the affiant from creditor claims. But for straightforward situations where a modest estate passes to known heirs, it eliminates months of delay and thousands of dollars in court costs and attorney fees.

The 2025 threshold change

AB 2016 (Stats. 2024, ch. 120) raised California’s small estate thresholds effective April 1, 2025. The new limits:

$208,850 for personal property (up from $184,500)
$750,000 for real property using the separate real property affidavit procedure

These figures are tied to the Consumer Price Index and will adjust again on April 1, 2028, and every three years thereafter under Probate Code § 13006(b).

The $208,850 limit is the total gross fair market value of all the decedent’s personal property in California that is subject to the affidavit procedure. The $750,000 limit applies to total gross value of real property in the decedent’s estate for the separate real property petition under Probate Code § 13150.

How to calculate whether you qualify

The calculation is straightforward but requires care. You are measuring the gross fair market value of the decedent’s real and personal property in California, excluding:

Property held in a living trust (already outside probate)
Joint tenancy property (passes by right of survivorship)
Property with a pay-on-death or transfer-on-death designation
Life insurance proceeds payable to a named beneficiary
Retirement accounts (IRAs, 401(k)s) with designated beneficiaries
Property held in a trust created by someone other than the decedent
Vehicles and vessels that can be transferred through DMV procedures under Vehicle Code § 5910 (amounts of $75,000 or less for vehicles)

Under Probate Code § 13050, the relevant measure is gross value, not net. If your father had a $200,000 brokerage account but owed $180,000 on a mortgage, the account counts at $200,000 for threshold purposes. Debts do not reduce the value for determining eligibility.

This is the trap that catches people: they think “net estate” when the statute says “gross value of property.” A $190,000 bank account qualifies. A $210,000 bank account does not, even if the decedent owed $150,000 in debts.

The process, step by step

1. Wait 40 days. Under Probate Code § 13100(b), the affidavit cannot be presented until 40 days after the decedent’s death. This is a hard requirement. A bank that receives an affidavit before the 40-day mark should (and usually will) refuse it.

2. Confirm no probate is pending. The affiant must declare, under penalty of perjury, that no proceeding is pending or has been conducted for administration of the decedent’s estate. If someone has already filed a probate petition, the affidavit procedure is unavailable.

3. Prepare the affidavit. Probate Code § 13101 specifies the required contents:

The decedent’s name and date of death
A statement that the gross value of all the decedent’s property in California (excluding property described in Probate Code § 13050) does not exceed $208,850
A description of the specific property to be transferred
The affiant’s identity and relationship to the decedent (or the basis for their entitlement)
A statement that no probate proceeding is pending or has been conducted
A statement that the affiant is entitled to the property (by will, intestate succession, or other basis)
A statement that 40 or more days have elapsed since the decedent’s death

The affidavit must be signed under penalty of perjury. Probate Code § 13101(e) requires that a certified copy of the decedent’s death certificate be attached.

4. Present the affidavit to the holder. Take the executed affidavit and death certificate to the bank, brokerage, employer, or other entity holding the decedent’s property. Under Probate Code § 13105, the holder must transfer or deliver the property to the affiant, provided the affidavit meets statutory requirements. The holder is discharged from liability upon good-faith compliance.

5. Collect the property. Once the holder transfers the asset, you have it. There is no court confirmation, no waiting period after presentation, and no further filing requirement.

Real property: the separate procedure

Personal property (bank accounts, investments, vehicles, tangible goods) uses the affidavit above. Real property requires a different procedure under Probate Code §§ 13150-13158, with its own threshold of $750,000 in total gross value of the decedent’s California real property.

The real property affidavit process:

Wait six months (not 40 days) from the date of death (Prob. Code § 13152)
File a petition with the superior court in the county where the property is located, or where the decedent resided at death
The court reviews the petition and, if it finds all requirements met, issues an order determining that the property has passed to the petitioner
Record the court order with the county recorder’s office to clear title

This is not self-executing like the personal property affidavit. It requires a court filing and a court order. But it is far simpler, faster, and cheaper than a full probate proceeding. There is no appointment of a personal representative, no creditor notice period (beyond the six-month wait), and no inventory and appraisal filed with the court.

The simplified probate for a California primary residence is a related but distinct procedure; the real property affidavit under § 13150 is available regardless of whether the property is a residence.

When it doesn’t work

The small estate affidavit is unavailable or impractical when:

The estate exceeds the threshold. $208,850 for personal property, $750,000 for real property. Even $1 over disqualifies the entire procedure.
A probate petition has been filed. Once a probate is open, the affidavit route is closed.
There’s a dispute. If siblings disagree about who inherits, or a creditor has filed suit, the affidavit offers no mechanism for resolution. A holder facing conflicting claims will likely refuse to honor any affidavit and require a court order.
The holder refuses. Some financial institutions have internal policies that are more restrictive than the statute requires. They may demand additional documentation, corporate-form affidavits, or indemnity agreements. This is frustrating but not uncommon, particularly with larger banks.
Creditor exposure is significant. The affiant is personally liable for the decedent’s debts, up to the value of the property received, under Probate Code § 13109. If the decedent had substantial debts, collecting assets by affidavit means collecting the liability along with them.

Liability and risks

Probate Code § 13109 makes this explicit: any person who collects property by small estate affidavit is personally liable for the decedent’s unsecured debts, to the extent of the value of the property collected. This liability exists for the statutory period during which creditors can enforce claims.

This is not theoretical. If your father’s $67,000 checking account is collected by affidavit, and a creditor later surfaces with a valid $40,000 claim, you owe that $40,000 personally, up to the $67,000 you received. There is no court oversight protecting you, no creditor notice period giving finality, and no discharge order. The tradeoff for speed and simplicity is exposure.

For estates with known creditors or uncertain debts, full probate (with its formal creditor claim period under Probate Code § 9100) may actually be the safer path, even if the estate is small enough to qualify for the affidavit. Use our probate calculator to see what that would cost.

The planning lesson

The small estate affidavit exists because the Legislature recognized that full probate is disproportionate for modest estates. But it is a cleanup tool, not a planning tool. The best outcome is never needing it at all: a properly funded revocable trust, beneficiary designations on financial accounts, and joint tenancy or TOD deeds on real property mean assets transfer without probate and without affidavit. No 40-day wait, no personal liability, no holder discretion, no threshold calculation.

If you are settling a small estate now, the affidavit may save you significant time and money. If you are planning your own estate, the goal is to make sure your family never has to use one.

This page is general information about California law, not legal advice for your situation, and reading it does not create an attorney-client relationship.