California Small Estate Affidavit: Avoiding Probate for Estates Under $184,500

What Is a Small Estate Affidavit? {#what-is-small-estate-affidavit}

California Probate Code sections 13100-13116 provide a simplified procedure for transferring a decedent's personal property to heirs without formal probate. The small estate affidavit — sometimes called a "Declaration for Collection of Compensation Owed to Deceased" or "Affidavit for Collection of Personal Property" — allows successors to collect assets directly from institutions holding them.

This is one of California's most useful probate alternatives. For qualifying estates, it eliminates:

• Court filings
• Hearings
• Statutory waiting periods beyond 40 days
• Mandatory attorney involvement
• Court fees and probate referee costs

The process is simple: after waiting 40 days from death, the heir presents a signed affidavit with a death certificate to the bank, brokerage, or other institution. That institution is then legally authorized to release the assets.

For attorneys, small estate matters are quick, straightforward, and appreciated by clients who expected to face months of probate.

Threshold Requirements {#threshold-requirements}

The Current Threshold

As of 2024, the small estate threshold is $184,500. This amount is adjusted periodically for inflation (it was $166,250 just a few years ago).

What Counts Toward the Threshold

Included in the calculation:

• Bank accounts (individual name only)
• Brokerage accounts (individual name only)
• Vehicles
• Personal property (furniture, jewelry, collections)
• Money owed to the decedent
• Business interests (sole proprietorship)
• Cryptocurrency in individual accounts

Excluded from the calculation:

• Real property (has separate procedures)
• Life insurance payable to named beneficiaries
• Retirement accounts with beneficiary designations (401(k), IRA)
• Bank accounts with POD (payable on death) designations
• Brokerage accounts with TOD (transfer on death) designations
• Joint tenancy property
• Community property passing to surviving spouse by law

Why the Exclusions Matter

The exclusions are critical because they often mean estates that appear large actually qualify for small estate procedures.

Example:

• House: $500,000 (excluded — real property)
• 401(k): $300,000 (excluded — beneficiary designated)
• Life insurance: $250,000 (excluded — beneficiary designated)
• Joint bank account: $50,000 (excluded — joint tenancy)
• Individual checking account: $25,000 (INCLUDED)
• Car: $15,000 (INCLUDED)

Total gross estate: $1,140,000 Total for small estate calculation: $40,000

This estate qualifies for small estate affidavit despite appearing well over the threshold.

Calculating Estate Value {#calculating-estate-value}

Date of Death Values

Use fair market value as of the date of death. This matters for:

• Investment accounts (stock values on death date)
• Vehicles (Kelley Blue Book value)
• Personal property (reasonable fair market value)

Vehicle Valuation

For vehicles, use fair market value, not:

• Original purchase price
• Loan payoff amount
• Replacement cost

Kelley Blue Book or similar guides provide defensible values. Be realistic — the goal is accurate valuation, not minimizing value to fit under the threshold.

Multiple Assets Add Up

If the decedent has several individual accounts at different banks, add them all together. The threshold applies to total qualifying assets, not per-institution limits.

Who Can Use a Small Estate Affidavit {#who-can-use}

Successor Definition

The affidavit can be signed by a "successor" to the decedent. Under Probate Code 13006, a successor is:

If there's a will:

• The executor named in the will, OR
• Beneficiaries named in the will

If there's no will (intestate):

• Heirs under California intestate succession
• Typically: surviving spouse, children, parents, siblings (in that order)

Priority Among Successors

When multiple people qualify as successors, they should agree on who will handle the affidavit. If they can't agree, formal probate may be necessary.

No Executor Appointment Required

The person signing the affidavit doesn't need to be formally appointed by any court. They sign under penalty of perjury that they are entitled to the property.

The 40-Day Waiting Period {#the-40-day-waiting-period}

Why 40 Days?

The 40-day waiting period (Probate Code 13100) serves several purposes:

• Allows time for creditors to come forward
• Ensures no probate has been filed
• Provides a brief window for potential disputes

When the Clock Starts

The 40 days run from the date of death, not from:

• Date death certificate was issued
• Date will was found
• Date attorney was consulted

Can You Prepare in Advance?

Yes. You can prepare all documents during the 40 days. Just don't present the affidavit to institutions until day 41 or later.

Step-by-Step Process {#step-by-step-process}

Step 1: Verify Eligibility

Confirm:

• 40 days have passed since death
• No probate has been filed in California
• Total qualifying assets are under $184,500
• The person signing is a valid successor

Step 2: Gather Documents

Required:

• Certified death certificate (original or certified copy)
• Will (if one exists)
• Documentation of asset ownership (statements, titles)

Helpful:

• ID of the person signing
• Proof of relationship (birth certificate, marriage certificate)

Step 3: Prepare Affidavit

Use Judicial Council Form DE-310 or prepare a custom affidavit that includes all required elements under Probate Code 13101:

• Decedent's name and date of death
• Statement that 40 days have passed
• Description of property being claimed
• Total value of qualifying estate (under threshold)
• Statement that no probate is pending
• Identification of successor relationship
• Signature under penalty of perjury

Step 4: Present to Asset Holder

Take the affidavit, death certificate, and ID to:

• Bank (for bank accounts)
• Brokerage (for investment accounts)
• DMV (for vehicle title transfer)
• Employer (for final wages)
• Other entities holding assets

Step 5: Collect Assets

The institution reviews the affidavit and releases assets. They are protected from liability for good-faith reliance on a properly executed affidavit.

Step 6: Distribute to Beneficiaries

If you collected on behalf of multiple beneficiaries, distribute according to the will or intestate succession laws.

Using Form DE-310 {#using-form-de-310}

The Judicial Council Form

Form DE-310 is the official Judicial Council form for small estate affidavits in California. It's called "Affidavit Re Real Property of Small Value."

Wait — that says "Real Property"?

Yes, there's a confusing naming issue. DE-310 is actually the form for real property under $61,500 (a separate procedure). For personal property small estate affidavits, you have two options:

Option 1: DE-310 Modified

Some practitioners modify DE-310 for personal property by adjusting the language. This works but requires care.

Option 2: Custom Affidavit

Many attorneys prepare a custom affidavit that tracks Probate Code 13101 exactly. This is often cleaner and avoids confusion.

Required Declarations

Whichever form you use, the affidavit must include all declarations required by statute:

1. Decedent's name
2. Date and place of death
3. At least 40 days have elapsed since death
4. No California probate proceeding is pending or has been conducted
5. Gross value of decedent's real and personal property in California (excluding certain property) does not exceed threshold
6. Description of property claimed
7. Name and address of each person receiving property
8. Affiant is the successor of the decedent or authorized to act on behalf of the successor
9. Affiant declares under penalty of perjury

Real Property: Different Rules {#real-property-options}

Real Property Is Not Covered by Standard Small Estate Affidavit

The $184,500 threshold and standard affidavit process applies only to personal property. Real property has separate rules:

Affidavit for Real Property of Small Value

Real property valued at $61,500 or less can be transferred via affidavit using Probate Code 13200. This is Form DE-310's actual intended use.

Requirements:

• Real property value $61,500 or less
• 6 months have passed since death (not 40 days)
• No probate pending

Petition for Succession to Real Property

For real property between $61,500 and $184,500, use Probate Code 13150 — a simplified court petition, not a full probate.

Process:

• File petition with court
• Hearing required
• Order confirms title transfer
• Faster and cheaper than full probate

AB 2016 for Primary Residences

Starting April 1, 2025, AB 2016 allows primary residences up to $750,000 to transfer to surviving spouses/domestic partners through simplified petition. This dramatically expands small estate options for real property.

Common Problems and Solutions {#common-problems}

Bank Refuses to Accept Affidavit

Problem: Bank's legal department says they don't accept small estate affidavits.

Solution: This is more common than it should be. Options:

• Escalate to branch manager or legal department
• Cite Probate Code 13104-13105 (protects bank for good-faith compliance)
• Provide legal opinion letter
• File complaint with bank regulator

Banks are legally required to honor proper affidavits. Persistence usually works.

Multiple Claimants Disagree

Problem: Two siblings both want to sign the affidavit and receive assets.

Solution: They need to agree. Either:

• One signs and agrees to distribute to both
• Both sign joint affidavit
• If no agreement possible, formal probate may be required

Estate is Slightly Over Threshold

Problem: Estate totals $190,000 — just over the $184,500 limit.

Solutions:

• Verify calculation — are you excluding everything excludable?
• Check if some assets have beneficiary designations that were missed
• Consider if some assets are actually joint tenancy
• If still over, formal probate may be required

Creditors Exist

Problem: Decedent had debts. Can heirs still use small estate affidavit?

Solution: Yes, but heirs are personally liable to pay decedent's debts up to the value of property received (Probate Code 13109). The affidavit doesn't eliminate debts — it just allows asset collection. Heirs step into decedent's shoes regarding debt obligations.

Will is Being Contested

Problem: One family member is challenging the will.

Solution: Small estate affidavit may not be appropriate. Contested estates typically need formal probate with court supervision. Using affidavit while contest is pending could create personal liability.

Practice Tips for Attorneys {#practice-tips}

Flat Fee Appropriate

Small estate matters are ideal for flat fee billing:

• Predictable scope
• Limited time investment
• Client-friendly pricing
• Clear expectations

Typical flat fees: $500-1,500 depending on complexity.

Document Everything

Even though it's informal, maintain good files:

• Copy of affidavit as executed
• Copy of death certificate used
• List of assets collected
• Distribution records
• Any correspondence with institutions

Consider Creditor Issues

Before recommending small estate affidavit, assess:

• Did decedent have significant debts?
• Are heirs prepared for personal liability?
• Would formal probate's creditor protection be valuable?

Sometimes formal probate is better even when small estate procedures are available — especially if creditor claims are likely.

Combine with Other Procedures

A single estate might use multiple tools:

• Small estate affidavit for bank accounts
• Petition to Determine Succession for house
• Beneficiary designations for retirement accounts
• Joint tenancy affidavit for jointly held property

The attorney who knows all the tools can create the most efficient path for each client.

Marketing Opportunity

Small estate cases come from families expecting expensive probate. When you solve their problem quickly and affordably, you earn referrals. These families have friends and neighbors who will eventually face similar situations.

Small estate affidavits are a gateway to building a probate practice — each satisfied client generates goodwill and referrals for larger matters.