When the person on title has died and there is no surviving joint tenant or recorded trust, the file needs a legal path to a new deed. California has more than one “small estate” procedure. They are not interchangeable, and escrow does not choose among them.
NESI searches title and lists what the record shows. A California probate attorney tells the family which statute, if any, fits when dealing with a deceased owner on title.
Three Legal Procedures You Will Hear About
Here are three common statutory paths in California (provided for information, not legal advice):
1. Affidavit to Collect Personal Property (Probate Code § 13100)
Used primarily for banks and similar account holders. It does not transfer a house.
2. Affidavit Real Property of Small Value (Probate Code § 13200; Judicial Council DE-305)
Applies to real property only. Requires a court filing and a probate referee appraisal, along with a different waiting period than the bank affidavit.
3. Petition to Determine Succession to a Primary Residence (Probate Code § 13151)
A formal court petition for a qualifying home, not a walk-in bank form.
Understanding California Probate Dollar Caps and Thresholds
Dollar caps change on a published Judicial Council schedule (form DE-300) and follow the specific date of death. Figures circulating for deaths on or after April 1, 2025 are often quoted as:
- $208,850: Personal property affidavit test limit.
- $69,625: Real property of small value affidavit limit.
- $750,000: Primary residence petition limit.
Always confirm the live DE-300 form and the exact date of death before anyone relies on a number. What is excluded from each test (trust assets, joint tenancy, POD/TOD, and other § 13050 items) is a question for legal counsel. Gross value, not equity, is the usual statutory measure.
What a Deceased Owner on Title Means on an Escrow File
A sale or refinance does not move on a family story alone. When there is a deceased owner on title, underwriting looks for recorded court papers, a deed from the person who now holds legal authority, or another document the underwriter will accept.
Escrow does not draft affidavits, select the statute, or determine whether an heir qualifies.
Instructions for Listing Agents, Buyer’s Agents, and Loan Officers
To handle a file with a deceased owner on title smoothly across residential, commercial, and refinance files:
- Indicate “deceased owner” on the order the same day it is opened.
- Send the death certificate, any trust, any will, and any existing court case number.
- Do not promise a buyer a 40-day close simply because someone mentioned a small estate form.
- Call or text when counsel says an order or Form DE-305 is ready to record.
Title and escrow are managed on one file to keep everything coordinated.
Frequently Asked Questions (FAQs)
Can the bank-style affidavit deed out a house when there is a deceased owner on title?
No. Real property requires a different statute and procedure altogether.
Is the affidavit filed with the court?
The personal property affidavit is usually presented directly to the asset holder. The real property affidavit (Form DE-305) is an official court form that requires court filing.
What is the difference between forty days vs six months?
These represent different statutory procedures. You should ask the estate attorney which timeline clock applies to your situation.
What if the property value is over the statutory cap?
If the estate exceeds the cap, legal counsel will look at formal probate or another court path rather than a title company form.
This article is general information only. It is not legal, tax, or insurance advice and is not a commitment to accept any affidavit, issue title insurance, or close any transaction. Small estate eligibility, waiting periods, and dollar limits are set by the Probate Code and Judicial Council forms in effect for that date of death. Heirs should consult their own qualified California attorney. NESI Title and Escrow Company does not prepare probate documents and assumes no liability for reliance on this content. Services are provided subject to applicable law, underwriting, and written escrow instructions.
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