California has several ways to settle an estate without going through full probate.
California probate is expensive (4-8% of the gross estate) and slow (12-18 months for most homeowner estates). The good news: California law provides several alternatives to full probate that, when they apply, let families settle an estate in weeks instead of months and for hundreds of dollars instead of tens of thousands. This article walks through the main alternatives and when each one fits.
If the deceased had a properly funded living trust, all the assets that were transferred into the trust during their lifetime are now controlled by the trust agreement and the successor trustee — not by the probate court. Probate is only triggered for assets held in the deceased's personal name at death. So a person who put their home, bank accounts, and brokerage accounts into their trust years before they died, and updated their retirement account beneficiaries directly, can have an estate that goes through ZERO probate. The successor trustee distributes everything per the trust terms. This is why we keep emphasizing that trust funding is the most important step in California estate planning.
If property is held with another person in joint tenancy or as community property with right of survivorship, the deceased's interest passes automatically to the surviving co-owner at the moment of death. The surviving owner records an Affidavit of Death with the County Recorder along with a certified death certificate, and the title clears. No probate needed. This is the most common reason a surviving spouse doesn't need probate after the first spouse dies — the house was held in joint tenancy or community property with right of survivorship, and the affidavit cleans up the record.
Accounts and assets that pass via beneficiary designation skip probate entirely. This includes retirement accounts (IRA, 401(k)), life insurance, annuities, and bank/brokerage accounts that have been set up as Pay-on-Death or Transfer-on-Death. If the deceased had a TOD deed on their home, that property also transfers automatically to the named beneficiary. The successor or beneficiary contacts each institution with a certified death certificate and provides identification — that's it.
If the deceased's total estate (excluding real property held in trust, in joint tenancy, or with a TOD deed) is below California's small-estate threshold, beneficiaries can use a Small Estate Affidavit under California Probate Code §13100 to collect the deceased's personal property — bank accounts, vehicles, household goods, and the like — without going through probate court.
The threshold is adjusted every three years. As of April 1, 2022, the threshold was $184,500 (up from the prior $166,250). Check the current threshold before relying on this number — it should be confirmed against the latest California Judicial Council updates.
The Affidavit must be presented at least 40 days after the date of death, must include a certified death certificate, and must list the property being claimed. The institution holding the asset (the bank, DMV, etc.) is required to release the asset to the affiant without probate. This is one of the most commonly used probate alternatives — and it's a routine document for an LDA to prepare.
California also provides a streamlined probate alternative for estates whose REAL property value is below a related threshold (around $61,500 as of 2022, adjusted periodically). Beneficiaries can file a Petition for Succession to Real Property of Small Value under Probate Code §13150, which is a much faster court procedure than full probate. The court reviews the petition and, if everything is in order, issues an order transferring the real property to the beneficiaries. This isn't as fast as the Small Estate Affidavit (which avoids court entirely), but it's much faster than full probate.
If the deceased left assets to a surviving spouse — whether by will, by intestate succession, or because the property was community property — the surviving spouse can use a Spousal Property Petition under Probate Code §13650. This is a court procedure, but it's much faster and simpler than full probate. It's most useful when a couple held assets in unclear or mixed forms and the survivor needs a court order to clean up title.
Full California probate is required when none of the alternatives apply — typically because:
- The deceased held real property worth more than the small-estate threshold in their personal name at death (not in a trust, not joint tenancy, not TOD). - The deceased had non-real-property assets exceeding the small-estate threshold in their personal name. - There's a dispute among heirs, a will contest, or a creditor claim that needs court oversight. - The estate has complex assets (a business, commercial real estate, multi-state property) that need court supervision to administer.
In those cases, full probate is the only option. The good news: an LDA cannot represent you in probate court — you'll need an attorney for the courtroom portion. But an LDA can prepare the petition, the inventory, the notices, the accounting, and other required documents at a fraction of what an attorney charges. Most LDAs (myself included) work alongside an attorney for the legal-advice portions while preparing the paperwork at LDA rates.
If you're trying to figure out which alternative applies after a loved one has passed away, the most important first step is to inventory what the deceased owned and HOW they owned it. Get certified death certificates (county clerk). Pull the most recent statements for every bank, brokerage, and retirement account. Pull the most recent property tax bill for any real estate, and look up the property on the County Recorder's website to see how title was held. Once you have that picture, the right alternative usually becomes obvious. If you'd like help walking through this, I'm happy to take a look at the situation in a free initial consultation.
The initial consultation is free. Phone, email, or in-person at the Stockton office.
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