If you’ve started researching what happens to a loved one’s estate, you’ve probably run into a confusing mix of numbers, forms, and terms that all sound like they mean the same thing but don’t. Probate. Small estate affidavit. Non-probate assets. It’s a lot.

Here’s the question that actually matters, and it’s the same one our attorneys ask at the very start of every initial consultation: does this estate need to go through probate at all?

The answer depends almost entirely on what the decedent owned and how they owned it. Some assets are required to pass through the California probate court. Others skip it entirely, regardless of what a will says. And a fair number of estates fall into a middle category where a simplified court procedure applies instead of full probate. Knowing which bucket your situation falls into can save months of court proceedings and thousands of dollars in fees.

The Basic Rule: Assets Held in the Decedent’s Individual Name

As a general rule, probate is required for any asset that was titled solely in the decedent’s name at death, with no beneficiary designation and no co-owner with survivorship rights attached. That includes:

• A house, condo, or other real property held in the decedent’s name alone
• Bank and brokerage accounts with no payable-on-death or transfer-on-death designation
• Vehicles, boats, and other titled personal property
• Business interests owned individually
• Personal belongings, collections, and other tangible property without a named beneficiary

If an asset falls into one of these categories, it typically has to go through the probate process before it can be legally transferred to an heir or beneficiary, even if there’s a valid will naming exactly who should receive it. A will directs where an asset goes. It doesn’t avoid the court process required to get it there.

California’s Small Estate Threshold

Not every estate needs a full probate case, though. California allows estates below a certain dollar value to use simplified procedures instead.

As of this writing, for deaths after 4/1/26, the threshold is $239,700. Previously, it was $208,850 for deaths occurring on or after April 1, 2025, and it was $184,500 for deaths between April 2022 and March 2025. California’s Judicial Council adjusts the figure periodically for inflation under Probate Code section 13100. If the decedent’s personal property in California falls at or under the current threshold amount, successors may be able to use a Small Estate Affidavit to collect bank accounts, investment accounts, and other personal property without opening a probate case at all.

A few important caveats:

The threshold is based on gross value, not equity. A bank account with $150,000 in it counts as $150,000. Debts and liens don’t reduce the number for this calculation.

Real property has its own, separate limit. The dollar threshold for personal property is not the same as the threshold for real estate. A small-value real property affidavit under Probate Code section 13200 currently applies only to California real property worth $69,625 or less, a fraction of the personal property threshold. Most homes, even modest ones, exceed that figure by a wide margin.

A separate path exists for a primary residence. Since AB 2016 took effect, families can use a Petition to Determine Succession to Real Property (Judicial Council form DE-310) to transfer a primary residence valued at up to $750,000, so long as the estate’s other personal property still falls under the small estate threshold. This has made a difference for Bay Area families, where even a modest starter home in Santa Clara County can carry a $750,000-plus assessed value.

There’s a mandatory waiting period. Successors generally must wait at least 40 days after the date of death before presenting a Small Estate Affidavit to a bank or other asset holder.

Assets That Skip Probate Entirely

Then there’s a whole category of assets that never touch the probate court, no matter how large the estate is or what the will says. These are sometimes called non-probate assets, and they transfer by operation of law or contract rather than through a court process:

Assets held in joint tenancy. When two or more people own property as joint tenants with right of survivorship, the surviving owner automatically becomes the sole owner the moment the other joint tenant dies. No probate required. This is extremely common with married couples and Bay Area real estate, since many homeowners take title this way specifically to avoid probate on the first spouse’s death.

Assets with a named beneficiary. Life insurance policies, retirement accounts like 401(k)s and IRAs, and payable-on-death or transfer-on-death bank and brokerage accounts all pass directly to whoever is named on the beneficiary form, regardless of what the decedent’s will says. This is one of the most common estate planning mistakes we see: someone updates their will after a divorce or remarriage but forgets to update the beneficiary designation on an old 401(k), and the ex-spouse ends up inheriting the account anyway.

Property held in a living trust. Assets that have been properly transferred into a revocable living trust during the grantor’s lifetime are owned by the trust, not the individual, so they bypass probate entirely when the grantor dies. This is the primary reason trust-based estate planning has become so common in California, particularly for homeowners in Santa Clara County and the broader Bay Area, where a single piece of real estate can easily exceed both small estate thresholds on its own.

Community property passing to a surviving spouse. For married couples, California offers a Spousal Property Petition, a simplified court procedure (not a full probate) that can transfer community and separate property directly to a surviving spouse. This route comes up constantly with jointly owned homes where the couple never got around to formal estate planning. One spouse passes away, nothing happens to the title because there’s no urgency, and years later the second spouse dies. At that point, without a Spousal Property Petition, the family is stuck probating two estates instead of one.

Why This Matters More in the Bay Area Than Almost Anywhere Else

California’s probate thresholds haven’t kept pace with Bay Area real estate values, and that gap is exactly why probate has become so hard to avoid here without proactive planning. A single-family home in San Jose or anywhere in Santa Clara County can easily be worth several times the personal property threshold, and even the newer $750,000 primary residence exemption doesn’t stretch as far in this market as it does elsewhere in the state. For a lot of local families, the home is the estate, and its value alone can push a straightforward inheritance into full probate territory unless it was addressed ahead of time.

This is also where county-level practice can matter more than people expect. Local rules and enforcement vary. Santa Clara County, for instance, is comparatively relaxed about certain filing deadlines that neighboring counties enforce strictly, which means an estate that would draw scrutiny in one county might move more smoothly in another. It’s one more reason a probate estimate from a friend or relative in a different county isn’t a reliable guide to your own case.

What This Means for Your Estate Plan

If most of what you own is titled in your individual name with no trust, no joint ownership, and no updated beneficiary designations, your estate is likely headed for probate regardless of what your will says. The good news is that this is entirely within your control. A revocable living trust can hold your real estate and major assets outside of probate altogether, and reviewing beneficiary designations on retirement accounts and life insurance takes far less effort than most people assume.

If you’re already administering an estate and aren’t sure which category your loved one’s assets fall into, that’s exactly the kind of question worth answering before you file anything. Our guide to starting the probate process in California walks through the early steps in more detail.

Every estate is different, and the interaction between joint tenancy, trust funding, and California’s shifting statutory thresholds isn’t always intuitive. If you’re trying to figure out whether a specific asset, or an entire estate, needs to go through probate, our attorneys can walk through it with you and help you plan accordingly.