Avoiding Probate Without a Will

Emily just called, frantic. Her mother passed away unexpectedly, and while she thought her mom had a will, she couldn’t find one. After a frantic search, it turned out there was a will, but it was a handwritten codicil – a change to an older will – and it wasn’t properly witnessed. A simple mistake, a missed signature, and now Emily is facing a full probate, potentially costing her estate $30,000 to $50,000 in fees and lasting over a year. This is a shockingly common scenario, and one we see frequently here in Escondido.

As an Estate Planning Attorney and CPA with over 35 years of experience, I’ve helped countless families navigate these complexities. It’s a particularly frustrating situation because often, with a little proactive planning, these costs and delays are entirely avoidable. The good news is there are several avenues to transfer assets outside of probate, even without a traditional will, though these procedures come with specific requirements and limitations.

What happens to assets if someone dies without a will or a valid codicil?

When someone dies intestate – meaning without a valid will – or with a flawed will like Emily’s mother, California law dictates how their assets are distributed. This involves a court-supervised probate process, which, as I mentioned, can be expensive and time-consuming. However, several procedures allow for the transfer of assets without full probate. These are often much simpler and faster, but they require meeting specific criteria. It’s important to understand that these are not substitutes for a comprehensive estate plan, but they can be invaluable tools in certain situations.

Can I avoid probate using a small estate affidavit?

For deaths occurring on or after April 1, 2025, the gross value threshold for using a Small Estate Affidavit (Probate Code § 13100) has increased to $208,850. This procedure allows successors to collect personal property without court involvement. However, 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. It’s a streamlined process, but the value limit means it’s only suitable for smaller estates. Remember, the affidavit process itself requires specific forms and procedures to be followed carefully to ensure it’s accepted by financial institutions.

What about avoiding probate with real estate?

If the primary concern is avoiding probate for a primary residence, California offers a couple of options. Under AB 2016 (Probate Code § 13151), a primary residence valued up to $750,000 qualifies for a ‘Petition for Succession’ rather than full probate administration. This is a court-filed Petition requiring a hearing and a Judge’s Order, though it is significantly faster than full probate. It’s crucial to differentiate this from the Section 13100 affidavit, which doesn’t require court involvement. Alternatively, for smaller real property interests, the Affidavit for Real Property of Small Value (Probate Code § 13200) can be used for real property interests valued at less than $69,625 (the 2025/2026 adjusted limit), allowing successors to file an affidavit with the Court Clerk and record a certified copy with the County Recorder, completely bypassing the need for a hearing.

What if I have assets left out of my trust – the “Oops” factor?

This is a surprisingly common problem. Someone intends to fund their trust by listing assets on Schedule A, but they forget to actually change the ownership. If a decedent intended an asset to be in their trust (e.g., listed on Schedule A) but failed to retitle it, a Section 850 Petition can obtain a court order confirming the asset as trust property. This ‘cures’ the title defect and avoids a full probate estate for that single asset. This is often a much more cost-effective solution than letting the asset go through probate. As a CPA, I also emphasize the importance of proper titling for maximizing the step-up in basis – a significant tax advantage for heirs.

Can a surviving spouse avoid probate altogether?

Yes, in many cases. The Spousal Property Petition (Probate Code § 13650) allows for the transfer of unlimited assets to a surviving spouse without full probate administration, regardless of the estate’s value. It is strictly for assets passing to a spouse/domestic partner and requires the property be characterized as community property or quasi-community property. However, this doesn’t apply to assets owned separately before the marriage or those acquired as separate property during the marriage. Understanding the difference between community and separate property is key to effective estate planning.

What about Transfer on Death (TOD) Deeds for real property?

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. It’s a powerful tool, but it requires careful consideration and understanding of the potential liabilities. It’s also important to note that the deed must meet specific formatting requirements to be legally enforceable.

What about things like cars and boats?

Vehicles and vessels may be transferred outside of probate using the Affidavit for Transfer Without Probate (DMV Form REG 5). 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. This is a relatively simple process, but it’s important to follow the DMV’s instructions carefully.

Ultimately, while these procedures can help avoid probate in certain situations, they are not a substitute for a comprehensive estate plan tailored to your individual needs and circumstances. I always recommend consulting with an experienced estate planning attorney to ensure your wishes are properly documented and your family is protected.

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.

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 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.