We know some of you are trying to get by without an estate plan and without an estate planning attorney, and you are convinced you can set up your assets to avoid probate without a living trust. For those of you determined to go it alone and not get a living trust estate plan, this article is for you.
Below are the seven ways you can avoid California probate. The first four apply to bank accounts, investment accounts, retirement plans, and life insurance. The last three apply to real property.
Many banks and financial institutions will allow you to name a transfer-on-death beneficiary for your bank and investment accounts. If your beneficiary outlives you, the account will go to your beneficiary without probate.
Retirement plans, such as IRAs and 401(k)s, require you to name a designated beneficiary. You can name a primary beneficiary and a contingent beneficiary. As long as one of your beneficiaries survives you, the retirement plan will go to your beneficiary and not go through probate.
Your life insurance death benefit will be paid out to your life insurance policy beneficiary. If you have named a beneficiary, and your beneficiary survives you, then your death benefit will not go through probate. Be careful, though, about naming young children as beneficiaries. Life insurance companies will often require a court order from a probate judge before they will distribute death benefits to a minor.
4. Small Estate Affidavit
If the value of your other assets is less than the current California probate threshold of $208,850, your estate representative can get access to those assets by using a Small Estates Affidavit, without probate.
These four ways to avoid probate apply to bank accounts, investment accounts, retirement plans, and life insurance. They do not apply to real property.
Below are the three probate-avoiding methods for real property.
A joint tenancy deed names multiple owners, and the surviving owner gets 100% of the property, all without probate. If you intend to add someone other than your spouse as a joint tenant on your property, be aware that it could trigger a Proposition 19 reassessment and increase your property tax.
The California legislature introduced Transfer-on-Death Deeds in 2016, and they updated the law in 2022. It's complicated.
Transfer-on-death deeds must be notarized and recorded with the local county recorder. Just like a standard grant deed or quitclaim deed. However, the similarity ends there.
In addition to the notary requirement, a transfer-on-death deed must be signed by two witnesses (similar to a will), and it must be recorded within 60 days of the notary date. Further, when the property owner dies, the beneficiary of the transfer-on-death deed must give legal notice to the property owner's heirs. The notice must follow the California Probate Code requirements and describe the effect of the transfer on death transfer and advise the heirs of their right to contest the transfer. In other words, the beneficiary of the transfer on death deed must send a formal letter to the dead owner's children that their dad left her the family home and you all can file a lawsuit to try to get it back.
In addition, the California Transfer on Death law limits how you can name beneficiaries. If you name more than one beneficiary, they must each receive an equal share. You can't designate certain percentages to each beneficiary. Also, you can't name a contingent beneficiary. If your beneficiary dies before you, and you don't go through the procedure to execute a new transfer-on-death deed, your home will go through probate, the very thing you hoped to avoid.
The beneficiary of the transfer-on-death deed may also be personally liable for the dead owner's debts, including unsecured debts and credit cards. And the liability extends for three years after death. If there are debts from the estate, the creditors could go after the transfer-on-death deed beneficiary.
Because of the three-year liability window, many title companies will not issue title insurance until the three-year period is up. Which means it will be difficult for the beneficiary to sell the property.
Effective April 1, 2025, California's Assembly Bill 2016 (AB 2016) raises the probate threshold for your primary residence to $750,000. Other assets, like bank accounts, investments, or personal property, don’t get a free pass under this new limit. For those assets, you can use the small estate affidavit described above.
AB 2016 modifies the existing “Petition to Determine Succession to Real Property” process under California Probate Code Sections 13150-13152.
If, when you die, your home is valued at $750,000 or less, your family can use the AB 2016 petition process to transfer your home without probate. But they have to follow the rules.
They can’t file the petition right away. California law requires a 40-day waiting period after the decedent’s passing. This provides time to gather necessary documents and ensure no surprises, like a discovered will or trust.
Confirm that the property in question was the decedent’s primary residence and that its gross value doesn’t exceed $750,000. You’ll need an appraisal, typically done by a probate referee, to establish the value as of the date of death.
Draft a Petition to Determine Succession to Real Property. This legal document includes:
- A property description (address, legal description, etc.).
- The decedent’s name, date of death, and whether they died with or without a will.
- The names, addresses, and relationships of all heirs, beneficiaries, or devisees (people named in a will).
- An inventory and appraisal of the property, attached to the petition.
- A statement requesting the court to determine who inherits the property.
You must deliver notice of the petition to every intestate heir (those who would inherit if there is no will), beneficiary, and devisee named in the petition. This step increases transparency but could spark disputes if heirs disagree on the property’s fate. You’ll need to serve this notice at least 15 days before the court hearing.
Submit the petition to the Probate Court in the county where the decedent resided or where the property is located (if they lived out of state). Include the appraisal and proof of notice to all parties.
The court schedules a hearing to review the petition. If everything checks out—no objections, proper notice given, value under $750,000, the judge issues an order determining who inherits the property. This order acts like a title transfer, allowing the heirs to take ownership without full probate.
Once you have the court’s order, record it with the county recorder’s office to update the property’s title. Done.
This process is faster and cheaper than formal probate, which can drag on for a year or more and eat up 4-5% of the estate’s value in fees. But it’s not foolproof. Disputes among heirs or sloppy paperwork can still derail it.
Whether you can successfully pull off using these methods to avoid probate without a living trust is uncertain. It will depend on whether your survivors correctly follow the requirements and whether disgruntled family members make trouble. If everything goes your way, these seven probate avoidance methods might work. But there are limitations:
Transfer-on-death accounts, retirement plans, and life insurance won't avoid probate if your beneficiary dies before you.
The Small Estate Affidavit to transfer your other assets without probate can only be used if the assets have a combined value of less than $208,850.
Adding someone other than your spouse as a joint tenant to your property could trigger an increase in your property tax.
A California Transfer-on-Death Deed is not easy to use, and it may create more problems than it promises to solve. If you intend to use one, be careful. You must follow all the rules and execute the transfer on death deed correctly. And you and your beneficiary must be fully aware of the consequences.
The AB 2016 petition process can only be used if your home is worth $750,000 or less on the date of your death. In addition, the petition process involves a court hearing, which can be complicated and costly. And, it will require your estate representative to notify all interested parties of the court hearing, which could open a can of worms. Finally, at the hearing, the probate judge will determine who should inherit your property. If you have a will, the judge will follow the terms of your will. If you don't have a will, he will follow the California Probate Code intestacy rules.
But even if you line everything up perfectly, you still need basic estate planning documents:
Will. You need a will to name your executors and to name the beneficiaries of your estate.
Durable Power of Attorney. You will need a durable power of attorney to authorize someone you trust to manage your assets if you become incapacitated.
Advance Health Care Directive and HIPAA. You will need an advance health care directive and HIPAA to authorize someone you trust to talk to your medical providers and make health care decisions for you if you are unable to do so.
With all the effort required and uncertainty of these probate avoidance methods, you may be better off with the tried and true living trust estate plan.
A living trust remains your best defense against probate, and a complete living trust estate plan will provide the additional estate planning documents you need. Probate avoidance, while important, is only part of estate planning.
A living trust sidesteps probate entirely - not just for your primary residence, but for all assets titled in the trust’s name (real estate, bank accounts, investments, etc.). No $750,000 cap, no 40-day wait, no court hearing. Your successor trustee distributes assets privately and efficiently, often within a few months - with no court interference.
With AB 2016, all beneficiaries end up on the property title together. Great if you’ve got one heir, but what if you have three kids who can’t agree on whether to sell or keep the house? A living trust lets you appoint a trustee (such as a sibling, adult child, or best friend) to manage or sell the property, avoiding family feuds. Plus, you can set terms, like staggered distributions or divorce protection provisions that a petition can’t touch.
If you become incapacitated, AB 2016 does nothing for you because it only kicks in after death. A living trust, however, names a successor trustee to manage your affairs seamlessly, avoiding the nightmare of a court-appointed conservatorship.
The petition process is public; anyone can peek at the court file. A living trust keeps your estate details confidential, shielding your family from prying eyes.
AB 2016’s notice requirement could invite challenges from disgruntled heirs. A living trust avoids this mess—no notifications, no court battles (unless someone contests the trust itself, which is rare with proper planning).
If you set up a well-written living trust, keep it up-to-date, and you transfer your probatable assets to it, then when you pass away, the trust administration can be smooth and easy without court interference.
Yes, you can use these seven methods to avoid probate without a living trust, but will it lead to the result you want? A living trust estate plan is more reliable and flexible. Unlike the limitations inherent in these transfer methods, you can design your living trust to your specific needs and wishes. And with an experienced estate planning attorney to guide you, it can be a surprisingly easy process.