Alternatives to Probate in California

There have been significant recent changes in California Probate law in 2025. Specifically, for any estates with a date of death on or after April 1, 2025, California will allow for the transfer of a decedent’s primary residence valued up to $750,000 gross value to the heirs without having to go through a full probate case.

Instead of a full probate case, we will be able to file a petition to determine succession to real property with the court, and have a court date to transfer the property into the name(s) of the heirs. While a petition like this still requires a court hearing, it generally allows us to resolve the process and get the property transferred to the heirs much more quickly and cost-effectively than a standard probate case.

In order to qualify for this process, the house must not exceed $750,000, it must be the decedent’s primary residence, and the rest of the assets in the estate that need to be dealt with must not exceed ~$200,000. We will also need the full cooperation and involvement of all of the heirs in the petition.

Note that there are a lot of very specific intricacies to determining whether an estate qualifies for this procedure. First, the dollar figure mentioned here for small estate thresholds will change every couple of years to account for inflation.

Beyond this, not all assets are counted towards calculating an estate value and determining if the estate is under the threshold to be able to do a small estate affidavit. Given this, we recommend you contact our office or a probate lawyer in general for a free consultation to help you navigate these situations.

In cases where there isn’t a house, dealing with financial assets can be a little bit more straightforward. If the value of the estate is not worth more than approximately $200,000, and there is no real property in the estate, then a Probate Code 13100 affidavit may suffice. For example, if a loved one had $100,000 in a bank account on which no beneficiary is named, and that was the only asset in the estate, our firm could prepare and have the heirs sign an affidavit directing the bank to release the funds to the heirs. No probate case would need to be filed to get these funds.

Oftentimes, a Husband and Wife will own real property as joint tenants or tenants in common. If property is held in joint tenancy, the surviving party can file an affidavit death of joint tenant with the county recorder’s office in order to transfer title into their name alone. However, if your spouse passes away and real property is held as tenants in common, then technically you only hold one half of the property in your name, and you will be unable to sell the property or refinance without first putting it entirely in your own name.

As California is a Community Property state, real property acquired during the marriage with community property funds is typically considered community property. If the deceased spouse did not name an alternate beneficiary by way of will or trust for their share of the community property, then their share of the community property will pass naturally to the spouse by intestate succession. It would be tedious to have to go through a full blown probate case simply to transfer such property into a spouse’s name, so a procedure was established (a spousal property petition) through which a spouse could petition the Court to transfer such property into their name. Such a petition is much quicker and easier than probate.

It is typically easier to be successful in a Spousal Property Petition if the deceased spouse had a will leaving everything to their surviving spouse. If there is no will, we will have to demonstrate to the court that the asset we’re addressing is, in fact, community property. 

The court may inquire as to facts regarding how the asset was purchased, if there was a down payment, where the down payment came from, etc. These are important issues, because if the property was acquired by the deceased spouse by gift, or inheritance, or purchased with funds the deceased spouse had prior to the marriage, then the property may be consider the spouse’s separate property. 

Without a will, under California’s intestate succession laws, separate property is split between the surviving spouse and the deceased spouse’s blood relatives (children, or parents, or siblings, etc.), and in such cases a spousal property petition would not be viable to deal with the asset.