Non-Probate Transfers

Even when a loved one did not plan, or did not plan perfectly, a full probate may not be necessary.

California law provides several petition and affidavit procedures that can dramatically reduce the cost, delay, and complexity of administration. With the right strategy, what might otherwise require a year or more in court and tens of thousands of dollars in fees and costs may instead be resolved in months at a fraction of the expense.

Our Trusts & Estates Practice Group has the experience to evaluate whether a summary procedure applies and to properly implement it. Below are several of the most common probate-avoidance tools available under California law.

Petition to Determine Succession to Primary Residence

(Real Property Under $750,000 – DE-310)

As of April 1, 2025, California significantly expanded the ability to avoid probate for a decedent’s primary residence. If the decedent’s interest in the home is valued at or under $750,000, successors may use a summary probate procedure by filing a Petition to Determine Succession to Primary Residence (Judicial Council Form DE-310). Important Note: A partial ownership is obviously worth less, meaning this petition can apply to a much higher valued primary residence if the decedent was only a partial owner.

If it does apply, instead of a year or more in probate, the DE-310 process often concludes in less than six months and frequently costs only a few thousand dollars rather than tens of thousands.

This streamlined procedure allows the court to confirm title directly in the successors without requiring full administration of the estate. When applicable, it is one of the most powerful probate-avoidance tools available.

Spousal Property Petition

(Surviving Spouse Procedure – DE-221)

For a surviving spouse, even when assets were titled solely in the decedent’s name, a full probate is often unnecessary.

Through a Spousal Property Petition, the surviving spouse presents facts establishing that the property would pass to them if a probate were opened. If the court agrees, it may confirm that the asset already belongs to the surviving spouse or order its transfer accordingly.

Although this process does require a court hearing, it is significantly faster and less expensive than formal probate. Spousal property petitions are resolved in months, not years.

Heggstad Petition

(Assets Left Out of a Trust – Probate Code § 850)

Sometimes an asset was intended to be part of a trust but was never properly transferred or was transferred out and never retitled back into the trust (for example, after refinancing real property).

In these situations, a Heggstad Petition may allow the court to confirm that the asset belongs to the trust without requiring a full probate.

Under favorable California case law, a settlor’s intent to hold an asset in the trust can be sufficient for the court to order it returned to the trust. Frequently, this intent is shown through a schedule of assets attached to the trust instrument. However, there are many scenarios that can support a successful Heggstad petition.

Courts often view Heggstad petitions favorably (especially when unopposed) because they conserve judicial resources and save grieving families time and expense.

Small Estate Affidavit

(Personal Property Under $184,500 – Probate Code §13100)

If the decedent’s total probate estate (excluding certain assets) is under $184,500, California law permits successors to collect personal property using a Small Estate Affidavit.

Under Probate Code section 13100, the successor signs and notarizes a declaration under penalty of perjury then presents it to the person or institution holding the property (such as a bank or brokerage).

When properly prepared, institutions comply and release the assets without court involvement.

Why would they comply?

Probate Code section 13105 provides that a holder of property who refuses to honor a valid small estate affidavit may be liable for attorney’s fees and costs incurred in litigation to compel compliance. That statutory exposure is usually incentive enough.

Affidavit Re Real Property of Small Value

(Real Property under $69,625 – DE-305)

Rarely applicable — but invaluable when it is.

In limited circumstances, real property of very small value may be transferred using a summary affidavit procedure rather than a formal probate. While narrow in scope, when the statutory requirements are satisfied, this tool can eliminate the need for court administration entirely.

Simply present an appraisal by a probate referee along with a notarized court form, and the clerk will stamp if approved. No hearing, no waiting, just results.

Strategic Evaluation Matters

Not every estate qualifies for these procedures. Asset values, title structure, creditor exposure, and family dynamics all affect whether a summary method is appropriate. There are also times where the expense of a probate is worth the ability to sell a property quickly (like when a lender is ready to foreclose).

At Wright, Finlay & Zak, our Trusts & Estates Practice Group carefully evaluates every matter to determine whether probate can be avoided, even when planning was incomplete.