Most people facing this question are a few weeks past a funeral. They might be an adult child, a surviving spouse, or the person a parent named to be in charge, and siblings are already asking what happens next. Before anyone signs a form or calls a bank, they want to know one thing: does this have to go to court? The honest answer depends on what the person owned and how each item was titled. This page walks through how to tell.
What Probate Is and When California Requires It
Probate is the court process for passing on a person's property after death. The California Courts' Guide to property after someone dies describes it as the legal process for transferring or inheriting property, handled in the superior court. All the property the person owned is called the "estate," and the guide notes that an estate may need probate even when there is a will.
Whether probate applies turns on three facts. The first is how each asset was titled. The second is whether there was planning before death, such as a trust or beneficiary designations. The third is the total value of what remains in the person's name alone. Jointly titled property, accounts with named beneficiaries, and trust property generally pass outside probate. Property titled only in the decedent's name, which is the legal term for the person who died, is what may require it.
This is a fact-by-fact question, and two estates of the same size can come out differently. The value limits for the simplified procedures change over time. The California Courts page Check if you can use a simple process to transfer property publishes the current figures, along with the date of death each figure applies to.
Assets That Pass Without Probate Regardless of Estate Size
Some property never becomes part of the probate question at all. When the law adds up the estate for the simplified procedures, Probate Code section 13050 leaves several kinds of property out of the count. The list includes joint tenancy property, interests that end at death, property passing to a surviving spouse, and property in a trust the decedent could revoke. It also excludes certain registered vehicles, vessels, and manufactured homes, along with some unpaid military and employment pay.
Joint tenancy and survivorship. The California Courts inventory guide explains that joint tenancy property is owned in equal shares, and when one owner dies, the property passes to the other. For a house, the survivor typically records a document with the county recorder showing the death so that title is cleared. A deed that says "community property with right of survivorship" passes to the surviving spouse or domestic partner in a similar way.
Accounts with a named payee. Under Probate Code section 5302, money left in a joint account generally belongs to the surviving party. This is true unless there is clear and convincing evidence of a different intent. Money in a payable-on-death (P.O.D.) account goes to the named payee, and section 5302 provides that a will cannot change these designations. Life insurance, retirement accounts, and transfer-on-death brokerage accounts also pass to whoever is named on the account. The company holding each one can confirm who that is. A revocable transfer on death deed is a deed that names who receives a house at the owner's death. Probate Code section 5600 applies its rules to these deeds when the owner died on or after January 1, 2016.
Living trusts. A trustee is the person who holds and manages trust property. A successor trustee is the person who takes over that role after the death, and they generally administer the trust under its own terms. Under Probate Code section 16061.7, when a revocable trust becomes irrevocable at a death, the trustee must serve a notification on each beneficiary and each heir. The deadline is 60 days after the death, or 60 days after the trustee learns of a person entitled to notice. If the trustee's office was vacant, the 60 days run from the date the new trustee starts serving.
Real property and personal property clear differently. Personal property is everything that is not real estate, including cash, cars, jewelry, and stock. A house is cleared through recorded documents, while an account is usually cleared through the institution that holds it. Even when nothing goes through probate, the family may still have property tax filings and other administrative steps to finish.
California's Simplified Procedures for Smaller Estates
When some property is left in the decedent's name alone, three simplified procedures may take the place of full probate. Each one covers a different kind of property and has its own wait and its own value limit. The Judicial Council form DE-300 Maximum Values for Small Estate Set-Aside & Disposition of Estate Without Administration lists the current limits by date of death.
The affidavit for collection or transfer of personal property. Probate Code section 13100 lets a successor collect money owed to the decedent, receive tangible personal property, and have securities and similar items transferred. It works without letters of administration, which are the court papers that authorize a personal representative. Two conditions apply. The gross value of the decedent's California property, leaving out the section 13050 property and any home claimed in a primary-residence petition, must be within the limit. And 40 days must have passed since the death.
The petition to determine succession to the decedent's primary residence. Under Probate Code section 13151, a successor may ask the superior court for an order confirming that they have succeeded to the decedent's main home in California. The home's value must be within the limit, and 40 days must have passed since the death. The person filing must deliver notice of the petition to each heir and devisee named in it within five business days of filing. The Judicial Council form DE-310 Petition to Determine Succession to Primary Residence requires an appraisal by a probate referee.
The affidavit for real property of small value. Probate Code section 13200 allows this affidavit no sooner than six months after the death. It is filed with the superior court in the county where the decedent was domiciled at the time of death, or, if the decedent was not domiciled in California, in any county where the decedent's real property is located. The affidavit must be notarized and must state that funeral expenses, last-illness expenses, and unsecured debts have been paid. It needs several attachments:
- a probate referee's inventory and appraisal,
- a certified copy of the death certificate,
- a copy of the will, if the claim is under a will, and
- form DE-300, for deaths on or after April 1, 2022.
The Judicial Council form DE-305 Affidavit re Real Property of Small Value warns that the person signing may be personally liable for the decedent's unsecured debts. That liability can reach the fair market value of the property plus any income received from it.