Probate in California: small estates and dying without a will
The short answer
In California, a small estate affidavit can collect property worth up to $208,850 (deaths on or after April 1, 2025) without probate, after a 40-day wait. A primary home worth up to $750,000 can pass by a simpler court petition. Larger estates go through probate, where executor and attorney fees are set by statute.
When someone dies in California, the first question for the family is usually practical. Do we have to go to court, or is there a shorter way?
Often there is a shorter way. This page covers who inherits when there's no will, the small estate affidavit, the new home petition, what full probate involves, and how fees work. It is part of our guide to estate rules in six large states.
Who inherits in California if there is no will?
California is a community property state, and that shapes everything.
Community property. A surviving spouse or registered domestic partner gets the decedent's half of community and quasi-community property. So the spouse ends up owning all of it (Prob. Code 6401).
Separate property. Here the spouse may share with other relatives:
| Who else survives | Spouse's share of separate property |
|---|---|
| No children, parents, siblings, or nieces and nephews | All of it |
| One child (or a deceased child's descendants) | One-half |
| No descendants, but a parent or a sibling's line | One-half |
| Two or more children (or their descendants) | One-third |
Whatever doesn't go to a spouse passes in this order: children and their descendants, then parents, then siblings and their descendants, then grandparents and their descendants, then descendants of a predeceased spouse, then next of kin, then parents of a predeceased spouse or their descendants (Prob. Code 6402).
Notice who isn't on that list: friends, a favorite charity, the neighbor who has helped for years. Only a will or a trust can include them. Our post on dying without a will walks through what that means.
Who handles the estate if there is no will?
Someone has to ask the court to serve as administrator. California sets the order: spouse or domestic partner, then children, grandchildren, other descendants, parents, siblings, and on through more distant relatives. After them come the public administrator and creditors (Prob. Code 8461).
Relatives have priority only if they inherit (Prob. Code 8462). A person with priority can nominate someone else in writing (Prob. Code 8465).
With a will, the person you named as executor usually serves instead. An executor can live outside California, though the court may require a bond even if the will waives it (Prob. Code 8571).
Can my family use a small estate affidavit?
Yes, if the estate is small enough. The affidavit lets heirs collect property without opening a probate case (Prob. Code 13100).
The limit is $208,850 for deaths on or after April 1, 2025. That's the gross value of the decedent's California property. For deaths from April 1, 2022 to March 31, 2025, it was $184,500. Many websites still show older numbers, so check the date of death (Judicial Council of California).
Some things don't count toward the limit, including joint tenancy property, trust property, and accounts with a named beneficiary. A primary home passed by the separate home petition doesn't count either. Heirs must wait 40 days after the death before using the affidavit (Prob. Code 13100). The amounts adjust every three years; the next change is April 1, 2028.
What about the house?
California added a new path in 2025. For deaths on or after April 1, 2025, heirs can petition the court for an order transferring the decedent's primary residence in California worth up to $750,000. It is also available after 40 days (Prob. Code 13151).
This is still a court petition, but it is a separate, narrower procedure than full probate. It applies only to the primary home (Prob. Code 13154).
| Situation | Usual path |
|---|---|
| Trust, joint tenancy or beneficiary-designated assets | Not counted toward the small estate limit |
| Other California property up to $208,850 | Small estate affidavit, after 40 days |
| Primary home up to $750,000 | Home petition to the court, after 40 days |
| Anything larger, or disputes | Full probate |
What does full probate involve?
If the estate is too large for the shortcuts, it goes to court. Our post on the probate process explains the steps in general. A few California rules stand out.
Independent administration. The executor or administrator can ask for "full" or "limited" authority to act with less court involvement. The court must grant it unless someone objects and shows good cause (Prob. Code 10450). Limited authority doesn't allow selling or borrowing against real estate (Prob. Code 10403). Even with full authority, the court still supervises fees, accountings and distributions (Prob. Code 10501).
The creditor period. A creditor must file by the later of four months after the court first issues letters (the papers appointing the executor or administrator), or 60 days after notice is mailed or delivered to that creditor (Prob. Code 9100).
How much do executors get paid in California?
California sets the executor's fee by statute, based on the value of the estate (Prob. Code 10800):
| Part of the estate | Fee |
|---|---|
| First $100,000 | 4% |
| Next $100,000 | 3% |
| Next $800,000 | 2% |
| Next $9,000,000 | 1% |
| Next $15,000,000 | 0.5% |
| Above $25,000,000 | Set by the court |
The executor's attorney gets the same amount again, separately (Prob. Code 10810). On a $1 million estate, each gets $23,000. Mortgages and debts are not subtracted when the value is figured. Our post on how much an executor gets paid compares this with other states.
How can I keep my estate out of court?
California offers a few tools.
A revocable living trust. Property held in a trust doesn't count toward the small estate limit. A California trust is revocable unless it expressly says otherwise (Prob. Code 15400). Your trustee manages it, then hands things out as you wrote. See what a living trust is.
A transfer-on-death deed. This passes your home to someone you name at death. It must be signed and dated by you, signed by two witnesses present at the same time, and notarized. It must be recorded within 60 days after notarization (Prob. Code 5624). The law ends January 1, 2032 unless extended, though deeds signed before then stay valid (Prob. Code 5600).
Beneficiary designations and joint tenancy. These also sit outside the small estate count. Our post on how to avoid probate covers each tool's trade-offs.
Whoever serves as executor or trustee is a fiduciary: legally required to act in your interest and follow what you wrote. Some people would rather name a professional, first or behind a relative. In a Kinly membership, Trella Trust Company can be named executor or trustee. If it settles an estate, that work is charged by the hour, and you see the rates before anything starts.
Before death, the questions are different. See our guides to power of attorney in California and the California medical power of attorney.
Common questions
What is the small estate limit in California?
For deaths on or after April 1, 2025, it is $208,850 in gross value of California property. Trust property, joint tenancy and beneficiary accounts don't count. Heirs must wait 40 days after the death.
Does California have an estate tax?
No. California's estate tax was tied to a federal credit that was repealed for deaths after 2004, so the state tax is zero (Rev. and Tax. Code 13302). The old inheritance tax was replaced by Proposition 6 in 1982.
Does a spouse inherit everything in California without a will?
A spouse gets all the community property. Separate property may be split with children, parents or siblings, depending on who survives.
Do transfer-on-death deeds still work in California?
Yes. They need two witnesses and a notary, and must be recorded within 60 days after notarization. The law sunsets January 1, 2032 unless extended, but deeds signed before then stay valid.
Sources
- Cal. Prob. Code 6401: Intestate share of surviving spouse (California Legislative Information)
- Cal. Prob. Code 6402: Intestate share of other heirs (California Legislative Information)
- Cal. Prob. Code 8461: Priority for appointment as administrator (California Legislative Information)
- Cal. Prob. Code 8462: Relatives' priority (California Legislative Information)
- Cal. Prob. Code 8465: Nominating an administrator (California Legislative Information)
- Cal. Prob. Code 8571: Bond for nonresident (California Legislative Information)
- Cal. Prob. Code 9100: Time for creditors to file (California Legislative Information)
- Cal. Prob. Code 10403: Limited authority (California Legislative Information)
- Cal. Prob. Code 10450: Independent administration (California Legislative Information)
- Cal. Prob. Code 10501: Matters still requiring court supervision (California Legislative Information)
- Cal. Prob. Code 10800: Executor compensation (California Legislative Information)
- Cal. Prob. Code 10810: Attorney compensation (California Legislative Information)
- Cal. Prob. Code 13100: Collection by affidavit (California Legislative Information)
- Cal. Prob. Code 13151: Petition for primary residence (California Legislative Information)
- Cal. Prob. Code 13154: Court order for primary residence (California Legislative Information)
- Judicial Council of California: Maximum amounts for summary succession procedures
- Cal. Prob. Code 15400: Revocable trusts (California Legislative Information)
- Cal. Prob. Code 5600: Transfer on death deeds (California Legislative Information)
- Cal. Prob. Code 5624: Signing a transfer on death deed (California Legislative Information)
- Cal. Rev. and Tax. Code 13302: Estate tax (California Legislative Information)
This page is general information, not legal or financial advice. Laws vary by state.