Can real property in California be transferred without probate?

Transferring real property without going through a full probate process in California is frequently impossible. This is often because much of the real estate in populated areas of California has a high market value. That being said, there are a couple of methods to transfer real property when the dollar thresholds under California law are met.

Petition to Determine Succession to Real Property

The first method involves a special petition to the court requesting that the court issue an order determining who the new owner of the property is. The Judicial Council of California has created a special form for this purpose. Use of this form involves a couple of requirements:

  1. There is no probate proceeding in California of the deceased person's estate, or the personal representative may consent to using this method; and
  2. The gross estate is valued at no more than $150,000.

The value of the gross estate is determined by preparing a special form called an "Inventory and Appraisal", which lists the assets that would've been subject to probate. This form is then sent to special court-appointed "probate referees" (appraisers) who then provide the market values of those assets as of the date of death. The relevant law is found in California Probate Code Sections 13150-13158.

Affidavit re Real Property of Small Value

The second method involves an affidavit that is filed with superior court and requires that the value of all of the deceased person's California real estate not exceed $50,000. Again, the value of the real estate is determined by a probate referee on an Inventory and Appraisal. This procedure can only be used after 6 months have passed since the date of death. Once the affidavit is filed with the superior court, a certified copy is then recorded in the county where the real estate is located. The relevant law is found in California Probate Code Sections 13200-13210.

As you can imagine, one major hurdle is that real property of any consequence in California is rarely less than $150,000 or $50,000, which is why it is especially important for owners of real estate in California to engage an estate planning lawyer.