If you’re a California resident getting ready to plan for how your assets will be distributed after death, you need to understand the difference between two important estate planning tools: the small estate affidavit process (under California Probate Code § 13100) and the living trust. Each offers unique advantages, depending on your asset size, types of property, and long-term planning goals.
There are a number of factors involved when considering the best path forward, including asset limits, probate shortcuts, DMV vehicle transfer, and bank rules, to name a few.
Below is a breakdown of when the small estate route is helpful — and when a living trust generally remains the better option.
When the affidavit helps
The small estate affidavit process is a simplified alternative to full probate. Under California Probate Code § 13100, a successor may collect or transfer particular items of property via affidavit instead of formal probate when both of the following conditions are met:
- The decedent’s gross value of real and personal property in California (aside from certain excluded property) does not exceed a statutory threshold (e.g., $166,250 if the death occurred before April 1, 2022; $184,500 if on or after that date) the new threshold for small estate affidavits is: $208,850; for deaths on or after April 1, 2025.
- At least 40 days have passed since their death.
This process works well when you have modest accounts, no real property, and want to avoid the cost and delays of full probate. Since many banks or institutions allow the presentation of a small estate affidavit, you can bypass standard probate shortcuts. For example, a bank may accept the affidavit in lieu of formal letters of administration.
Also, when the estate consists of assets like a modest bank account or other tangible personal property (and perhaps you need a quick DMV vehicle transfer or bank rules permitting transfer to a successor), this can eliminate the standard waiting periods and paperwork for probate. However, it is key that the estate does not exceed the asset limits set by the statute — if it does, you may need to use full probate or another route.
Other things to watch: some institutions still insist on “letters” (formal probate documentation) even though the law allows the affidavit route, so you may face resistance unless you walk them through the statute.
To summarize: the small estate affidavit is beneficial when the decedent’s estate is simple, under the statutory thresholds, does not contain real property (or very little), and you are dealing mostly with bank/traditional accounts under the per-institution policies and rules on transfers.
Why Trusts still win
While the affidavit route is attractive for simple estates, a properly drafted living trust (revocable living trust) still beats the small estate route in many scenarios — especially when the estate includes real estate, multiple accounts, incapacity planning, or is based around more complex dynamics.
When you own real estate, a living trust lets you place the property into the trust so, upon death or incapacity, your successor trustee can manage or distribute the real estate without formal probate.
If you hold multiple bank or brokerage accounts, investment assets, or you expect complexity (for example, blended families with stepchildren, multiple beneficiaries, divorce or remarriage), a living trust gives you faster access and fewer roadblocks than the affidavit path. According to California self-help sources, a living trust can avoid the time and public nature of probate and preserve privacy.
Additionally, if you want to plan for incapacity, a living trust shines. It allows a successor trustee to step in immediately without the need for a court-appointed conservatorship. This planning is simply not addressed by the small estate affidavit route.
In estate planning for blended families, or in case you expect future changes (second marriages, children from different relationships, property in multiple states), a living trust is more adaptable and resilient than relying solely on small estate procedures.
Bottom line
For a California resident, if your estate is simple (i.e., under the statutory asset limits, consisting of mostly personal property or modest accounts), using the small estate affidavit may be cost-effective and efficient. However, if you own real estate, have multiple assets, wish to oversee incapacity or complex family dynamics, then establishing a living trust remains the most advantageous solution.
For tailored advice, speak with an estate planning attorney who knows California law. At California Living Trusts, we specialize in helping families determine their legacy goals and how best to achieve them.