The Estate Is Not Very Big. Do I Still Need to Go Through Probate?

California Probate Code section 13100 provides for a Small Estate Probate in order to avoid a full probate if the decedent’s real and personal property in the state of California does not exceed $150,000 at the time of the decedent’s death.

The Small Estate Probate is a simplified process that does not require an heir to go to court in order to inherit personal property (such as money in a bank account or stocks). However, this process is not applicable to inheriting real property (such as a house). The only requirements for using this simplified probate procedure is (a) an estate that does not exceed the $150,000 valuation, (b) a 40 day waiting period after the decedent’s death, and (c) a written declaration (often called a Small Estate Affidavit) to the person or agency that has the property or is in charge of the transfer of the property.

How Do I Determine if an Estate is Worth $150,000 or Less?

In order to determine if an estate is eligible for a Small Estate Probate, the following should be calculated:

  • All real and personal property, and
  • All life insurance or retirement benefits that will be paid to the estate

Excluded from the calculation are:

  • Cars, boats, mobile homes
  • Real property outside of California
  • Property held in trust, including a living trust
  • Real or personal property held in joint tenancy
  • Property that passed directly to the surviving spouse or domestic partner
  • Life insurance, death benefits not subject to probate that pass directly to the beneficiaries
  • Unpaid salary or other compensation up to $5000 owed to the decedent
  • The debts or mortgages of the person who died (these are not allowed to be subtracted for purposes of the estate valuation)
  • Bank accounts owned by multiple persons, including the decedent
  • Some payments if the decedent was in the armed forces
  • For other exclusions see California Probate Code section 13050

How Do I Determine if I Have the Legal Right to Inherit the Property?

In order to inherit property, you must be a beneficiary in the decedent’s will or an heir if the person died without a will. You may also be the guardian or conservator of the estate, or serve another role as described in California Probate Code section 13051.

If a person died without a valid will, the law will look at the type of property, the relationship between all persons claiming to be heirs, and other issues. It may be advisable to speak with a lawyer to determine if you qualify as an heir to the property in question.