California Small Estate Affidavit: The Probate Code 13100 Procedure (2026)

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Full probate in California is slow and expensive, but not every estate has to go through it. When someone leaves a relatively modest amount of property, the people entitled to inherit can often skip probate entirely using a simple sworn document called a small estate affidavit. It is one of the most useful shortcuts in California estate law, and it is available to families without a lawyer.

This guide explains the small estate affidavit procedure under Probate Code Section 13100, the current dollar threshold, the 40-day waiting period, and exactly which property counts toward the limit.

What the small estate affidavit does

Under California Probate Code Section 13100, a person entitled to a deceased person's personal property can collect it by presenting a signed, sworn affidavit to whoever holds the asset, such as a bank, a brokerage, or a transfer agent, instead of opening a probate case.1 The holder releases the property to the successor once the affidavit and supporting documents are provided. No court hearing, no personal representative, and no statutory probate fees.

The current dollar threshold

The affidavit procedure is only available when the deceased person's qualifying probate property does not exceed a set dollar limit. For deaths on or after April 1, 2025, that limit is $208,850.46 This figure is not fixed forever. Probate Code Section 890 requires the Judicial Council to adjust California's small-estate thresholds every three years to keep pace with inflation, and the next scheduled adjustment takes effect April 1, 2028.3

Which figure applies depends on the date of death. Estates of people who died on or after April 1, 2025 use the $208,850 limit. Estates of people who died between April 1, 2022 and March 31, 2025 use the older $184,500 limit. Always match the threshold to the decedent's date of death, not the date you file.

The 40-day waiting period

You cannot use the affidavit immediately. Probate Code Section 13100 requires that at least 40 days have passed since the person's death before the affidavit can be presented.1 This waiting period gives time for the situation to settle and for any competing claims to surface. When you present the affidavit, you generally attach a certified copy of the death certificate and, if the asset is real-property related, an inventory and appraisal by a probate referee.2

What property qualifies, and what does not

The threshold applies only to property that would otherwise pass through probate. Several categories of assets are excluded from the calculation entirely, which is why many estates qualify even when the family home is worth far more than $208,850.

Excluded from the count (these pass outside probate anyway):

  • Property held in joint tenancy or as community property with right of survivorship.
  • Assets in a living trust.
  • Life insurance, retirement accounts, and payable-on-death or transfer-on-death accounts with a named beneficiary.
  • Property passing outright to a surviving spouse (which can use the separate spousal petition instead).
  • Certain vehicles, vessels, and specific small-value items that have their own transfer procedures.

Counted toward the limit: solely owned bank and brokerage accounts, uncashed checks, stocks and bonds held in the decedent's name alone, and similar personal property that has no beneficiary designation.

Real estate has its own, lower limits. The basic $208,850 affidavit is for personal property. Real property uses separate procedures with different, lower thresholds, an Affidavit for Succession to Real Property of Small Value for very modest parcels, or a Petition to Determine Succession to Real Property for larger ones. Do not assume a house can be transferred with the basic personal-property affidavit.

How the process works in practice

  1. Wait 40 days after the death.
  2. Confirm the estate qualifies by adding up only the countable probate property and checking it against the threshold for the date of death.
  3. Prepare the affidavit stating that the estate qualifies, that you are entitled to the property, and that no probate is pending, signed under penalty of perjury.
  4. Attach the death certificate and any required inventory and appraisal.
  5. Present it to the asset holder, who releases the property to you.

Because the affidavit is signed under penalty of perjury and creates personal liability if you take property you are not entitled to, be accurate and honest about who the rightful heirs are.

A will still matters for small estates

The small estate affidavit is a collection tool, not a substitute for deciding who inherits. If there is a valid will, the property still passes to the beneficiaries the will names; if there is no will, it passes under California's intestacy rules, which may not match your wishes. Writing a clear will is how you stay in control regardless of the estate's size. Our guides on avoiding probate in California and dying without a will in California give the full picture, and you can put your own wishes in writing with our California will builder.

Frequently Asked Questions

What is the small estate affidavit limit in California? For deaths on or after April 1, 2025, the personal-property limit is $208,850. The figure is adjusted every three years, with the next change due April 1, 2028.

How long do I have to wait to use a small estate affidavit? At least 40 days must pass after the person's death before you can present the affidavit.

Does the family home count toward the $208,850 limit? The basic affidavit is for personal property. Real estate uses separate procedures with different thresholds, and property held in a trust or joint tenancy is excluded from the count.

Do I need a lawyer to use a small estate affidavit? No. The affidavit is designed to be used without a lawyer or a court hearing, though the document is signed under penalty of perjury, so accuracy matters.

Sources

  1. 1California Probate Code Section 13100 (collection of small estate by affidavit; 40-day rule) (leginfo.legislature.ca.gov)
  2. 2California Probate Code Section 13101 (contents of the affidavit) (leginfo.legislature.ca.gov)
  3. 3California Probate Code Section 890 (triennial adjustment of small-estate amounts) (leginfo.legislature.ca.gov)
  4. 4California Courts: Probate Code 890 adjusted amounts (effective April 1, 2025) (courts.ca.gov)
  5. 5California Courts Self-Help: When formal probate may not be needed (selfhelp.courts.ca.gov)
  6. 6Finlay Law Group: New CA small estate affidavit maximum is $208,850 (orangecountyestateplanningfirm.com)
Max Kuch

About the author

Max Kuch

Max Kuch writes about estate planning, wills and inheritance for California Will Template. He gathers the rules from the California statutes and the leading public data, then explains them in plain, accessible language so anyone can put their wishes in writing.

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Frequently asked questions

Yes, if you finish it correctly. California Probate Code Section 6111 recognizes a holographic will, which is one where your signature and all of the material provisions (the parts that say who gets what) are in your own handwriting. No witnesses are required. Our service gives you a clean, California-specific draft. To make it valid you copy the operative wording out by hand, then sign it. We strongly recommend you also date it, because Section 6111(b) allows an undated holographic will to be challenged if it conflicts with another will and the order cannot be established.

Because that is exactly what makes a holographic will valid under California law. Section 6111 requires that the material provisions and your signature be in your own handwriting. A printed or typed document that you only sign is not a valid holographic will in California and would need witnesses to qualify as a formal will. We give you the full text and a clear guide, so you simply transcribe the substantive parts (names, gifts, executor) in your own hand, sign, and date it.

California has no forced heirship, so you are generally free to decide who inherits. Two protections still apply. California is a community property state, so your surviving spouse already owns one half of the community property regardless of your will. Separately, the omitted spouse and omitted child rules (Probate Code Sections 21610 to 21612) protect a spouse you married, or a child born or adopted, after you signed the will: they may still take a share unless your will shows the omission was intentional. If you truly want to leave someone out, say so clearly in the will.

Keep the original signed handwritten document somewhere safe, such as a fireproof home safe or a bank safe deposit box, and make sure the person you name as executor knows where it is and can reach it. California has no statewide registry for holographic wills. If you prefer an official option, you may lodge the original with the clerk of the superior court in your county for safekeeping during your lifetime. Do not staple, alter, or mark the original after you sign it.

We do not recommend a single joint document. A California holographic will must be in the testator's own handwriting, and one page written by two people creates confusion about whose words are whose and complicates changes later. The clean approach is two separate mirror wills, one written and signed entirely by each spouse, that reflect the same wishes. Our tool produces an individual draft for each of you so you can each write and sign your own.

Yes. You can revise your California will whenever your circumstances change, for example after a marriage, a divorce, a birth, or a move. The safest method is to write a fresh holographic will that revokes all previous wills, then copy it out by hand, sign it, and date it. Dating matters here: if two handwritten wills conflict and one is undated, Section 6111(b) can make the undated one invalid. Destroy the old original once the new one is signed.

No. This service helps you create a valid holographic will for straightforward situations, but it is not legal advice and does not replace an attorney. If your estate is large, you own a business, you have blended family issues, property in more than one state, minor children needing guardianship planning, or you expect a dispute, consult a California estate planning attorney. For many people with simple wishes, a properly handwritten, signed, and dated will is a solid starting point.

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