Affidavit for Small Value Real Property

I recently had a client, David, who was devastated. His mother passed away unexpectedly, and she had a small rental property – a modest cabin near Big Bear. She’d verbally told David she wanted him to have it, but she hadn’t updated her estate plan. We discovered she had a pour-over will, intending the cabin to ultimately end up in her trust. Unfortunately, the will was dated, and a codicil adding the cabin had been misplaced during a recent move. The cost of full probate, even for a seemingly simple property, was going to eat up a significant portion of the cabin’s value – easily $25,000 to $30,000 in attorney fees, court costs, and executor commissions. It was a heartbreaking situation, and we had to scramble to find a solution.

Can I Avoid Probate Altogether for a Small Property?

Absolutely. California law offers several streamlined options for transferring real property without the full probate process, and the right one depends on the property’s value and the specific circumstances. For many clients, the Affidavit for Real Property of Small Value can be a lifesaver. As a CPA as well as an estate planning attorney with over 35 years of experience, I’m uniquely positioned to advise on the tax implications of these transfers, including step-up in basis and potential capital gains issues. Often, the probate cost savings far outweigh any tax consequences, but it’s vital to have that complete picture.

What Exactly Is the Affidavit for Real Property of Small Value?

The Affidavit for Real Property of Small Value (Probate Code § 13200) allows for the transfer of real property interests without court supervision, but there’s a key limitation: the total value of the property must be below a certain threshold. As of 2025/2026, that limit is $69,625. It’s relatively straightforward. The successor in interest (the person inheriting the property) completes the affidavit, attesting to the facts of the death and their entitlement to the property, and then files it with the County Recorder’s Office.

Is This Right for a Vacant Lot or Timeshare?

It often is. The affidavit is particularly well-suited for things like vacant land, timeshares, or other minor real property interests. However, it’s crucial to understand that this $69,625 limit applies to the entire interest. So, if a client owns a timeshare with a significant resale value, even if they only used it a few times a year, it might exceed the threshold.

How Does This Differ from AB 2016 or the Small Estate Affidavit?

This is where things get tricky, and why professional guidance is essential. The Affidavit for Real Property of Small Value is separate from both the Small Estate Affidavit (Section 13100) and AB 2016 (Probate Code § 13151). The Small Estate Affidavit, for deaths occurring on or after April 1, 2025, applies to personal property (cash, stocks, etc.) and has a higher threshold – $208,850. This procedure allows successors to collect personal property without court involvement. Remember, this total MUST NOT include assets held in joint tenancy, trust, or those with named beneficiaries (POD/TOD), but MUST include the value of any real property unless that property is handled via a separate summary procedure.

AB 2016, on the other hand, addresses primary residences. Under AB 2016, a primary residence valued up to $750,000 qualifies for a ‘Petition for Succession’ rather than full probate administration. CRITICAL DISTINCTION: Unlike the Section 13200 affidavit, this is a court-filed Petition requiring a hearing and a Judge’s Order, though it is significantly faster than full probate.

What if the Property is Worth More Than $69,625?

If the property exceeds the small value threshold, other options may be available. We might consider a Heggstad Petition (Probate Code § 850) if the property was intended to be in the trust but was never formally transferred. Or, if the client used a Transfer on Death Deed, we need to verify it was properly recorded within the required 60-day window. A Revocable Transfer on Death Deed is a valid alternative to probate for residential property, but it MUST be recorded within 60 days of notarization to be valid. Furthermore, beneficiaries assume liability for the decedent’s debts up to the value of the property for 3 years after death.

In David’s case, while the cabin exceeded the $69,625 limit, the fact that his mother had a valid pour-over will and trust allowed us to utilize a streamlined probate process, avoiding the worst of the costs. A thorough assessment of all available options, combined with careful estate planning, can save families significant time, expense, and emotional distress.

How do enforcement rules in California probate court shape outcomes for heirs and fiduciaries?

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.

To protect against specific family risks, review heir disputes without a will, check for omitted heirs and pretermitted children, and be vigilant for signs of financial abuse concerns.

California probate is most manageable when authority is documented early, assets are classified correctly, and procedure is followed consistently from petition through closing. When the process is approached with realistic expectations about notice, claims, accounting, and dispute risk, the estate is more likely to move toward closure without avoidable conflict or delay.

Verified Authority on California Probate Alternatives

• Personal Property Affidavit ($208,850 Limit): California Probate Code § 13100 (Small Estate Affidavit)
  For deaths on or after April 1, 2025, the gross value threshold for using a Small Estate Affidavit has increased to $208,850. This procedure allows successors to collect cash, stocks, and personal items without court involvement. Warning: This total MUST NOT include assets held in joint tenancy, trust, or those with named beneficiaries (POD/TOD), but MUST include the value of real property unless handled via a separate summary procedure.
• Primary Residence Succession (AB 2016): California Probate Code § 13151 (Petition for Succession)
  You must distinguish between the Affidavit for Real Property of Small Value (strictly for property <$69,625) and AB 2016. Under AB 2016, a primary residence valued up to $750,000 qualifies for a ‘Petition for Succession’ rather than full probate. This is a court-filed Petition requiring a Judge’s Order, though it is significantly faster than full administration.
• Spousal Property Petition (Unlimited): California Probate Code § 13650 (Spousal Transfers)
  This powerful alternative allows for the transfer of unlimited assets to a surviving spouse or domestic partner without full probate administration, regardless of the estate’s value. It is strictly for assets passing to a spouse and requires the property be characterized as community property or quasi-community property.
• Trust Assets & The “Heggstad” Petition: California Probate Code § 850 (Heggstad Petition)
  If a decedent intended an asset to be in their trust (e.g., listed on Schedule A) but failed to retitle it (the “Oops” factor), a Section 850 Petition can obtain a court order confirming the asset as trust property. This “cures” the title defect and avoids opening a full probate estate for that single asset.
• Vacant Land & Timeshares: California Probate Code § 13200 (Real Property of Small Value)
  For real property interests valued at less than $69,625 (the 2025/2026 adjusted limit), successors can file an Affidavit for Real Property of Small Value with the Court Clerk and record a certified copy with the County Recorder. This completely bypasses the need for a hearing or judge’s order.
• Vehicle & Vessel Transfers (DMV): DMV Form REG 5 (Affidavit for Transfer Without Probate)
  Vehicles and vessels may be transferred outside of probate using the Affidavit for Transfer Without Probate (REG 5). Critically, the value of the vehicle is excluded from the $208,850 small estate calculation, meaning a high-value car does not disqualify an estate from using summary procedures.
• Digital Asset Access (RUFADAA): California Probate Code § 870 (RUFADAA)
  Even in summary administration, digital assets can be locked. Without specific RUFADAA language (Probate Code § 870) in your Will or Trust, service providers like Coinbase and Google can legally deny successors access to digital wallets and accounts, forcing a full probate just to retrieve them.