California Small Estate Affidavit (2026): $208,850 Limit, Rules & the $750K Home Petition

Your mother dies with a checking account, a small brokerage account and a car. Nobody wants a year in probate court for that. In California you may not need one: the California small estate affidavit (people also call it a Probate Code 13100 affidavit) lets you collect up to $208,850 of that kind of property with no probate case and nothing filed with a court.

The catch? California splits things up. Personal property goes one way, real estate another, and each has its own dollar cap. Below you’ll find who can sign, what gets counted toward the limit and how the declaration itself works. We also walk through the separate routes for a house, among them the $750,000 primary-residence petition that took effect in 2025.

The California limits for 2026, by date of death

The Judicial Council adjusts California’s small estate amounts every three years under Probate Code section 890. The current figures apply to deaths from April 1, 2025 through March 31, 2028:

Since AB 2016, the petition procedure covers only a primary residence in California. Form DE-310 is titled “Petition to Determine Succession to Primary Residence” for every death date.

Seen a different number on another site? Check it against the Judicial Council’s table and Form DE-300. Both list $208,850 for a death on or after April 1, 2025, and the next scheduled change is April 1, 2028.

Who can use the California small estate affidavit

Under Probate Code section 13100, a successor can collect the decedent’s personal property by affidavit when:

1. The gross value of the decedent’s real and personal property in California, after the exclusions below, is $208,850 or less;
2. At least 40 days have passed since the death; and
3. The declaration can state that no probate proceeding is now being or has been conducted in California for the estate, or that the personal representative has consented in writing.

A “successor” is the sole beneficiary of the item, or all of its beneficiaries together, under the will; with no will, it is the person or persons who inherit it under California’s intestacy rules (section 13006). So you can use the affidavit with or without a will. Several heirs to the same item? Plan on all of them signing one declaration. Some people can sign on a successor’s behalf: a guardian, a conservator, a trustee, or an agent under a durable power of attorney (section 13051).

Note the word gross. California does not subtract mortgages or loans. Picture a condo worth $150,000 with a $140,000 mortgage still owed. For the limit, the full $150,000 counts.

What does not count toward $208,850

Section 13050 takes several kinds of property out of the calculation. Which items fall on that list can decide whether an estate qualifies.

• Joint tenancy property, and any interest that ended when the decedent died. The surviving owner already has it.
• A revocable living trust. Whatever it holds is handled by the trustee under the trust.
• Vehicles registered or titled under the Vehicle Code.
• Boats and vessels that are numbered under the Vehicle Code.
• Manufactured homes, mobilehomes, truck campers and floating homes that are registered with the state.
• Unpaid salary or compensation owed to the decedent, up to $20,875. Military pay still owed is left out too.
• Assets that skip the estate. That means accounts with a surviving owner or a payable-on-death payee, and other assets that go straight to a named beneficiary. Life insurance and retirement benefits count only if the estate itself is the one being paid.

So what’s left in the count? Any bank or investment account in the decedent’s name alone with nobody listed as beneficiary. Belongings worth something. Money people still owed the decedent. And, easy to miss, the value of California real estate the decedent owned alone. Real estate counts toward the $208,850 even though the affidavit cannot transfer it. A home in the decedent’s sole name can push an estate over the limit by itself, depending on its value, unless the home goes through a primary-residence petition, which is counted separately: a primary residence included in a section 13151 petition (the $750,000 route below) is left out of the $208,850 count. Two more things are left out: property that passes to a surviving spouse under section 13500, and real property outside California, because section 13100 counts only property in this state.

Property passing to a surviving spouse follows its own rules. A surviving spouse or domestic partner who is legally entitled to all the property can file a spousal or domestic partner property petition (Form DE-221). The court’s Self-Help Guide calls that route faster and less complicated than opening probate. Separately, a surviving spouse can collect up to $20,875 (net) of the decedent’s unpaid pay from an employer under sections 13600 and 13601.

How to use the affidavit, step by step

1. Wait 40 days after the date of death. The declaration must state that 40 days have passed.
2. Total the estate. Start with everything that counts, then drop the property section 13050 excludes. Save your worksheet; you may want it later.
3. Complete the declaration. No Judicial Council form exists for the section 13100 affidavit, since the declaration goes to the holder and not to the court. Ask the bank whether it has its own form. Either way, the declaration has to contain every statement section 13101 lists. The Sacramento County Public Law Library publishes a sample. For the general-purpose version of the document, see our small estate affidavit template guide.
4. Include the required statements. The declaration gives the decedent’s name and the date and place of death, and says that 40 days have passed. It says that no probate proceeding is now being or has been conducted in California, or that the personal representative consented in writing. It states that the current gross fair market value of the estate, not counting section 13050 property or a home in a section 13151 petition, does not exceed the limit. It describes the property you are collecting and names each successor. You say that you are the successor or authorized to act for them, that no one else has a better right to the property, and that you ask for it to be paid or delivered to you. You declare all of it true under penalty of perjury under California law.
5. Attach the paperwork. You need a certified copy of the death certificate and the Judicial Council list of adjusted dollar amounts (Form DE-300). If the decedent owned any California real estate, add an inventory and appraisal of it by a probate referee (section 13103). Bring ID. Stock transfer agents may ask for extra papers too, such as an affidavit of domicile and a stock power.
6. Present it to each holder: bank, credit union, brokerage or transfer agent. Once the requirements are met, the holder must pay or deliver, and the affidavit discharges the holder from further liability.

Nothing is filed with the superior court. Compare that with probate, where California sets the executor’s fee and the attorney’s fee mainly as a percentage of the estate’s appraised value, without subtracting liens (sections 10800 and 10810).

Before you sign: check for Medi-Cal estate recovery

Did the person receive Medi-Cal after turning 55? If so, the California Department of Health Care Services (DHCS) may seek repayment from the estate. DHCS says estate recovery reaches members who were 55 or older. It also reaches members of any age who were determined to be permanently institutionalized.

For a member who died on or after January 1, 2017, DHCS can collect only from assets that go through probate. It does not seek repayment if the member left a spouse or registered domestic partner, a child under 21 or a disabled child, and it may waive a claim that would cause substantial hardship.

A deadline applies too. Whoever handles the affairs of a deceased Medi-Cal member must give DHCS a Notice of Death and a copy of the death certificate within 90 days of the date of death, and Probate Code section 215 says the same. Before you collect or divide anything, contact DHCS Estate Recovery and keep a note of what they say.

Transferring a California house without full probate

The section 13100 affidavit cannot move real estate. California offers three other routes for a house. Which one fits depends on the home’s value and the timing.

1. Affidavit re real property of small value (up to $69,625)

If all the decedent’s California real estate, not counting property section 13050 excludes, is worth $69,625 or less, section 13200 lets the successor file Form DE-305 with the superior court. You cannot file it until six months after the death. Each signer also needs a notary’s acknowledgment. In the affidavit, you state that funeral expenses, last-illness expenses and all unsecured debts have been paid. A probate referee’s inventory and appraisal is attached. The clerk files the affidavit and issues a certified copy without the attachments. That copy goes to the county recorder to be recorded. The court charges $45 for filing the affidavit and issuing one certified copy.

2. Petition for a primary residence (up to $750,000)

Assembly Bill 2016 created it for deaths on or after April 1, 2025. A successor asks the superior court for an order that they have succeeded to the decedent’s primary residence in California. The home’s gross value must be $750,000 or less, and 40 days must have passed. This uses a petition to determine succession (Form DE-310), an appraisal by a probate referee and a court hearing, not a full probate administration. You must deliver notice of the petition to each heir and devisee named in it within five business days of filing. The Judicial Council’s statewide fee schedule effective January 1, 2026 lists a $435 fee for this petition, and a few counties, including Riverside and San Francisco, add a local courthouse surcharge. Property that was not the decedent’s primary residence in California does not qualify. If you plan to sell the house later, ask a title company whether it will insure the sale based on the court order.

3. Joint tenancy, trust or TOD deed

If the home was held in joint tenancy or in a living trust, section 13050 leaves it out of the estate for these procedures. The court’s Self-Help Guide also says property with a transfer-on-death provision can transfer automatically to the person listed. In those cases the dollar limits above do not come into play. For how those deeds work in general, see our transfer on death deed template guide.

When the estate is over the limit

Suppose the countable estate is over $208,850 and none of the real property routes fit. Then California probate follows. Before you accept that, run three checks:

• Recount the exclusions. Vehicles, boats, mobilehomes, trust assets and joint tenancy property are not part of the count.
• Look at the spouse. A surviving spouse or domestic partner who is entitled to all the property may use a spousal or domestic partner property petition (Form DE-221). The court’s Self-Help Guide calls it faster and less complicated than probate.
• Look at the small estate set-aside. When there is a surviving spouse or minor children, sections 6602 and 6609 let a court set aside an estate with a net value (after liens) of up to $107,900 for them.

For budgeting a full case, our probate cost estimator shows how court and executor costs add up.

Liability: the promise you make in the declaration

The affidavit shifts responsibility to you. A person who collects property with a section 13100 affidavit is personally liable for the decedent’s unsecured debts, capped at the fair market value of what they received, less any liens (section 13109). If the personal representative decides someone else has a better right to the property, the representative can ask for it back, or for its value plus interest if you no longer have it (section 13111). Keep your worksheet and copies of every declaration you hand out.

How California compares

At $208,850, California’s limit is among the highest in the country. The highest limits in our table are Wyoming ($400,000), Oregon (two separate caps: $75,000 for personal property and $200,000 for real property, with manufactured homes counted as real property) and California. Arizona is close, with $200,000 for personal property plus a separate $300,000 real property affidavit. California counts real estate toward the limit, but the affidavit cannot transfer it. See how every state compares in our small estate affidavit limits by state table.

Frequently Asked Questions

What is the California small estate affidavit limit in 2026?

If the death happened on or after April 1, 2025, it’s $208,850, and the next scheduled adjustment is April 1, 2028. For a death between April 1, 2022 and March 31, 2025, the figure is $184,500.

Does a California small estate affidavit need to be notarized?

No, not for the section 13100 declaration. The statute lets you sign a declaration under penalty of perjury instead of a sworn affidavit. The holder does need reasonable proof of who you are. If you sign in front of the holder, it can rely on a current California ID or passport, among other IDs; if you sign somewhere else, a notary’s acknowledgment counts as that proof (section 13104). The real property affidavit, Form DE-305, is different: it does need a notary.

Does the house count toward the $208,850?

Yes, when the decedent owned it alone. The value of California real estate counts toward the limit, even though the affidavit cannot transfer it. Joint tenancy property and living trust property are excluded. For deaths on or after April 1, 2025, a primary residence worth up to $750,000 can go through a court petition to determine succession. A home included in that petition drops out of the $208,850 count.

Do I have to file the small estate affidavit with the court?

No. You give the section 13100 declaration straight to the bank or other holder. Of the procedures covered here, only the real property ones involve the court: the DE-305 affidavit for property worth up to $69,625 and the petition to determine succession for a primary residence.

Can I use the affidavit if there is a will?

Yes. The successor under the will can use it, as long as no probate proceeding is pending or has been conducted and the estate is within the limit. If a personal representative has already been appointed, the declaration must say the representative consented in writing, and a copy of the consent and the letters goes with it.

How long does the bank have to pay?

The statute says within a reasonable time. A holder that receives a proper affidavit with the required documents must pay or deliver the property. If it refuses, the successor can sue, and the court awards attorney’s fees if the holder acted unreasonably.

ClearLegalTips

ClearLegalTips is an independent publisher of plain-English legal guides, free document templates, and cost calculators for common U.S. legal tasks. Every article is reviewed by founder and editor Fatih Öztürk and fact-checked against official sources: statutes, court fee schedules, and government filing pages. Not a law firm; nothing here is legal advice.