Affidavit for Real Property of Small Value

I had a call from Alan last week, absolutely frantic. His mother passed away unexpectedly, leaving only her house – a modest bungalow in Oceanside – and a small checking account. He’d started the probate process, thinking it was straightforward, but the court calendar was backed up for months. He was facing potential delays in selling the property, mounting property taxes, and a very angry buyer who was threatening to walk away. Alan was looking at losing a significant portion of the sale proceeds simply because of probate delays. This isn’t uncommon, and it’s precisely the situation California law anticipated when creating alternatives to full probate.

What is the Affidavit Procedure for Transferring Real Property of Small Value?

California law recognizes that forcing every estate, no matter how small, through the formal probate process is inefficient and unduly burdensome. That’s why the legislature created the Affidavit procedure for the transfer of real property with a limited value. It’s a streamlined process designed for simpler situations, offering a much faster and less expensive way to transfer ownership.

How Does the Affidavit Procedure Work?

The process involves completing and recording an “Affidavit for Collection of Personal Property” (though it’s used for real property too!) with the County Recorder. This affidavit essentially states that the decedent died owning the property, that the value of the property doesn’t exceed certain limits, and that you are legally entitled to receive it as a designated beneficiary or heir. It needs to be signed under penalty of perjury. While seemingly simple, accuracy is critical. One incorrect statement can invalidate the affidavit and force you into full probate.

What are the Value Limits for Using the Affidavit Procedure?

This is the crucial part. For deaths on or after April 1, 2025, if the gross value of the estate is under $208,850, you generally do not need to open a full probate. You can use the ‘Affidavit for Collection of Personal Property.’ Note: This limit excludes cars, boats, and trust assets. It’s important to understand that this $208,850 limit applies to the entire estate, not just the house. If there are other assets – bank accounts, stocks, vehicles – those must be included in the total valuation.

What if the Property Value Exceeds the Limit?

If the real property is worth more than $208,850, or if the total estate value exceeds that amount, the affidavit procedure isn’t an option. You’ll need to explore other probate alternatives, such as the Petition for Succession to Real Property, or potentially a full probate proceeding. The choice depends on the specific facts of the estate.

Can I Still Use the Affidavit if There’s a Will?

Yes, the affidavit procedure can be used even if the decedent had a will. The affidavit confirms that you are the beneficiary named in the will who is entitled to receive the property. However, the will must be valid, and the affidavit must accurately reflect the terms of the will.

What are the Advantages of Using the Affidavit Procedure?

Faster Transfer: The affidavit procedure can be completed in a matter of weeks, compared to the months or even years it can take to go through full probate.
Lower Costs: The costs associated with the affidavit procedure are significantly lower than those of full probate, as you avoid court filing fees, attorney fees (although I still recommend counsel to review the documentation), and other administrative expenses.
Simplified Process: The affidavit procedure is much simpler and less complex than full probate, requiring less paperwork and court appearances.

Why a CPA-Attorney Can Help

As an Estate Planning Attorney and a CPA with over 35 years of experience, I often see situations where clients underestimate the total value of the estate or overlook potential tax implications. A CPA’s understanding of stepped-up basis and capital gains rules is critical. For example, the property will receive a step-up in basis to its fair market value as of the date of death, potentially minimizing capital gains taxes when it’s eventually sold. Properly valuing the estate, considering all assets, and understanding the tax consequences are vital to ensure a smooth and efficient transfer. I’ve seen too many cases where a seemingly simple estate gets bogged down in tax issues because of a lack of proper planning.

Alan, thankfully, was able to utilize the affidavit procedure after a careful review of his mother’s assets. We confirmed the estate fell within the limits, prepared the affidavit, and recorded it with the County Recorder. He closed on the sale of the house within six weeks, avoiding significant financial loss. Don’t let probate delays eat away at your inheritance. Knowing your options is the first step.

What failures trigger contested proceedings and court intervention in California probate administration?

Success in probate court depends less on the size of the estate and more on the accuracy of the petition and the behavior of the fiduciary. Whether the issue is a forgotten asset, a contested creditor claim, or a disagreement among siblings, understanding the procedural triggers for court intervention is the best defense against prolonged administration.

• Escalation: Prepare for litigating probate disputes if agreement fails.
• Validity: Understand the grounds for will contest process.
• Trust Issues: Navigate complex trust litigation in probate.

A stable probate administration outcome usually follows from clarity, consistency, and readiness for court review, especially when multiple stakeholders and competing interpretations are involved. When documentation supports enforcement and timelines are respected, families are less likely to face preventable escalation.

Verified Authority on Types of California Probate

• Spousal Property Petition: California Probate Code § 13650
  The gold standard for surviving spouses. This petition allows for the transfer of community and separate property to the surviving spouse without the delays of full probate. There is no dollar limit on the value of assets transferred under this section.
• Small Estate Affidavit ($208,850 Limit): California Probate Code § 13100
  For smaller estates (valued under $208,850 as of April 1, 2025), this procedure allows successors to collect money and tangible personal property by presenting a notarized affidavit to the holder (e.g., the bank), bypassing the courts entirely.
• Petition for Succession (AB 2016): California Probate Code § 13151
  Designed for “house-only” estates. If the primary residence is worth less than $750,000, this court-supervised summary proceeding allows for the transfer of the property. It is faster and cheaper than full probate but requires a judge’s order to clear title.
• Ancillary Administration (Foreign Domicile): California Probate Code § 12501
  If the decedent lived in another state (e.g., Nevada) but owned a vacation home in California, the California courts have jurisdiction over that real estate. “Ancillary Probate” is the process used to admit the foreign will and distribute the California property.
• Special Administration (Emergency): California Probate Code § 8540
  When time is of the essence. If assets are in danger or a business needs immediate management, the court can appoint a Special Administrator. These powers are temporary and specific, intended only to hold the line until a general executor is appointed.
• The “Heggstad” Petition (Trust Cure): California Probate Code § 850
  Often mistaken for probate, this is actually a petition to avoid it. If a decedent had a trust but forgot to title an asset in the trust’s name, a Section 850 petition asks the court to declare that the asset belongs to the trust, bypassing the need for a full estate administration.