Small Estate Affidavit for Real Property — California Probate Code §§ 13200–13210

Two affidavits in Division 8 of the Probate Code are often both called the "small estate affidavit," and they do different jobs. The one in § 13100 lets a successor collect money, receive tangible personal property and have evidences of a debt transferred once 40 days have passed since the death (§ 13100). Real property is handled by a separate procedure: an affidavit filed with the superior court under § 13200, no sooner than six months after the death (§ 13200(a)).

The court then issues a certified copy of the affidavit, and that copy is recorded with the county recorder where the real property is located (§ 13202). The procedure is limited to small estates: the statute sets a dollar ceiling on the gross value of the decedent's California real property, and that ceiling is adjusted every three years (§ 13200(h); § 890). This page explains what the statute says; it does not state the current adjusted amount.

The § 13100 procedure applies, excluding the property described in § 13050 and any property included in a primary-residence petition under § 13151, if the gross value of the decedent's real and personal property in California does not exceed $166,250, as adjusted periodically under § 890, and 40 days have passed since the death (§ 13100). It lets the successor collect money due the decedent, receive tangible personal property, and have evidence of a debt, obligation, interest, right, security or chose in action transferred, whether or not it is secured by a lien on real property (§ 13100(a)–(c)). Title to land itself is not on that list. The statement is made in an affidavit or declaration under penalty of perjury and furnished to the holder of the property, with a death certificate attached (§ 13101(a), (d)). For a death before April 1, 2022 the dollar amount in that statement is $166,250; for a later death it is the adjusted amount in effect on the date of death (§ 13101(g)), which the Judicial Council's list gives as $184,500 (April 1, 2022 through March 31, 2025) and $208,850 (on or after April 1, 2025).

A particular item of real property instead goes through § 13200: the person claiming as successor files the affidavit in the superior court (§ 13200(a)). The "successor of the decedent" is the sole beneficiary or all of the beneficiaries who succeeded to that item under the will, or, if there was no will, the person or persons who succeeded to it under Sections 6401 and 6402 (§ 13006(a), (b)).

A person or persons claiming as successor to a particular item of real property may file no sooner than six months from the death. The affidavit is filed in the superior court of the county where the decedent was domiciled at death, or, if the decedent was not domiciled in California, in any county where the decedent's real property is located (§ 13200(a)). It must be in the form prescribed by the Judicial Council (§ 13200(a)).

The procedure may be used only if no proceeding for the administration of the decedent's estate is pending or has been conducted in this state, or if the decedent's personal representative consents in writing to using it (§ 13210).

The affidavit states the decedent's name; the date and place of death; a legal description of the real property and the decedent's interest in it; and the name and address of any guardian or conservator of the decedent's estate at death, so far as known (§ 13200(a)(1)–(4)). It also states, under penalty of perjury, that at least six months have elapsed since death as shown in an attached certified death certificate, that no estate administration is pending or has been conducted in California (or that the personal representative consented in writing), that funeral expenses, last-illness expenses and all unsecured debts have been paid, and that the affiant is the successor and no other person has a superior right to the decedent's interest (§ 13200(a)(6)–(10)).

Each person signing needs a notary public's certificate of acknowledgment (§ 13200(b)). An inventory and appraisal of the decedent's California real property, excluding the property described in § 13050, must be attached; it is made as provided in Part 3 of Division 7, and the appraisal is made by a probate referee the affiant selects from those appointed by the Controller for the county where the property is located (§ 13200(c)). Other attachments: a copy of the will, if the affiant claims under a will and no estate proceeding is pending or has been conducted (§ 13200(d)); a certified death certificate, and, if a personal representative consented, a copy of the consent and of the letters (§ 13200(e)); and, for a death on or after April 1, 2022, the Judicial Council's list of adjusted dollar amounts in effect on the date of death (§ 13200(f)). The affiant must also deliver a copy of the affidavit and attachments to any guardian or conservator named in it (§ 13200(g)).

The affidavit must state that the gross value of all the decedent's California real property, as shown by the attached inventory and appraisal and excluding property described in § 13050, does not exceed the statutory amount (§ 13200(a)(5)). For a death before April 1, 2022, that amount is $55,425; for a death on or after April 1, 2022, it is the adjusted dollar amount, published under § 890(c), in effect on the date of death (§ 13200(h)). The Judicial Council's official list gives $61,500 for a death from April 1, 2022 through March 31, 2025 and $69,625 for a death on or after April 1, 2025; the next adjustment is scheduled for April 1, 2028.

On April 1, 2022 and every three years after, the Judicial Council adjusts the Division 8 dollar amounts for changes in the Consumer Price Index, rounded to the nearest $25, and publishes a list of the current amounts with the date of the next adjustment (§ 890(a)–(c)). An adjustment does not apply when the decedent died before the adjustment date (§ 890(d)). The current figures are not reproduced here: look them up on the Judicial Council's published list for the date of death.

Some property does not count toward the limit. Property held in joint tenancy, property in which the decedent had a life or other interest ending at death, property passing to a surviving spouse under § 13500, and property in a trust revocable by the decedent during life are excluded in valuing the estate (§ 13050(a)(1)).

The total fee for filing the affidavit and for one certified copy is the amount set in subdivision (b) of Government Code § 70626 (§ 13201). When the clerk receives the affidavit and the fee and determines the affidavit is complete and has the required attachments, the clerk files it with the attachments and issues a certified copy without the attachments (§ 13202).

That certified copy is recorded in the office of the county recorder of the county where the real property is located. The recorder indexes it in the index of grantors and grantees, with the decedent as the grantor and each person designated as a successor as a grantee (§ 13202).

A person who deals in good faith and for valuable consideration with a successor named in a recorded certified copy has the same rights and protections as if each named successor had been named a distributee of the real property in a final order for distribution (§ 13203(a)). Issuing and recording the certified copy does not prevent later proceedings to administer the estate (§ 13203(b)).

The person designated as a successor in the certified copy (the "transferee") can still be personally liable. The transferee is liable for the decedent's unsecured debts, limited to the fair market value of the property when the certified copy was issued, less liens and encumbrances (§ 13202.5(a), (c); § 13204(a), (b)). If estate administration is later commenced, the transferee is liable to the estate for a share of those debts (§ 13204.5(a)), and may voluntarily return the property to the estate (§ 13205.5(a)). The transferee is also liable to anyone with a superior right to the property by will or intestacy, up to the property's net value at issuance plus income the estate would have received, plus, if the property was disposed of, 7 percent per annum interest on its value at disposition (§ 13205(a)). If the affidavit was fraudulently executed or filed, that liability is three times the property's net fair market value (§ 13205(b)). A personal representative may also ask that transferred property be restored to the estate, with the same 7 percent interest and treble restitution rules (§ 13206(a), (b), (e)).

A claim under § 13205 is forever barred three years after the certified copy is issued, or three years after the fraud is discovered, whichever is later, and the period is not tolled for any reason (§ 13205(c); the same period applies to a claim under § 13206(f)). These remedies are in addition to any remedies for fraud or intentional wrongdoing (§ 13208).

This page is general information, not legal advice. Read the enacted text linked below, and talk to a probate lawyer about a specific estate.