Settling a Loved One’s Property After a Wrongful Death in California

After the loss of a loved one, the family faces decisions it never expected to make. The bank account, the car, the house, the last paycheck: each has to go somewhere, and each has its own rules.

When the death was caused by someone else, there is a second question that families rarely hear about. The wrongful death claim and your loved one’s estate are not the same thing. The money from one belongs to the heirs personally. The money from the other belongs to the estate, and the estate’s creditors can reach it.

Most of a loved one’s property can be transferred without a full probate, if the family uses the right procedure. The wrong one can leave an heir personally responsible for debts he or she never owed.

This article explains the main ways property passes after a death in California, and the traps to avoid.

The Wrongful Death Recovery Is Not Part of the Estate

A wrongful death claim belongs to the people authorized to bring it under Code of Civil Procedure section 377.60, usually called the heirs: the surviving spouse or domestic partner, the children, and others the statute names. The heirs do not need to open a probate to bring it, although the estate’s personal representative may also bring it on their behalf. (See who may bring a claim.) It is a new claim that arises on the death and belongs to the heirs themselves. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263–1264.)

For more than a century, California courts have held that the money recovered “constitutes no part of the estate” of the person who died. (Estate of Riccomi (1921) 185 Cal. 458, 460–461.) It does not go to the decedent’s creditors. (Estate of Bright v. Western Air Lines, Inc. (1951) 104 Cal.App.2d 827, 829–830.) And it is divided according to each heir’s own loss, not by the shares of a will or the inheritance laws. (Riccomi, supra, 185 Cal. at p. 462; § 377.61.) Our article on how a recovery is divided among the heirs explains more.

The survival claim is different. It recovers what your loved one lost before death, such as medical bills and lost earnings, and it passes to the estate subject to the rules that protect creditors. (§ 377.30; Prob. Code, § 7001.) When a case settles, how the money is allocated between the two claims can matter a great deal to the family.

No probate is needed to bring the survival claim. A successor in interest may file a sworn declaration and pursue it directly. (Code Civ. Proc., § 377.32.)

The Date of Death Sets the Dollar Limits

California’s shortcuts around probate depend on the value of the property, and those limits are adjusted every three years. The amount that applies is fixed by the date of death. (Prob. Code, § 890.) For deaths on or after April 1, 2025, the limits are:

• Small estate affidavit (personal property): $208,850.
• Petition for the primary residence: $750,000 (for deaths through March 31, 2028).
• Affidavit for real property of small value: $69,625.
• Set-aside for a spouse and minor children: $107,900.
• Final wages collected by a spouse or excluded from the value: $20,875.

Earlier deaths have lower limits. The Judicial Council publishes the full table on form DE-300, which must be attached to these affidavits and petitions. The next adjustment is April 1, 2028.

Property That Passes Outside Probate

Much of what people own never needs a court at all, and it does not count toward the limits above. (Prob. Code, § 13050.)

• Payable-on-death accounts belong to the surviving named beneficiary. Joint accounts generally belong to the surviving owner, unless there is clear and convincing evidence that the person who died intended otherwise. (Prob. Code, § 5302.) The bank will usually need a death certificate and identification.
• Joint tenancy property passes to the surviving owner. For real estate, the survivor records an affidavit of death of joint tenant with a certified death certificate (Prob. Code, § 210) and files a change in ownership statement with the county assessor within 150 days (Rev. & Tax. Code, § 480).
• Trust assets pass under the trust, through the successor trustee.
• A transfer on death deed passes real estate to the named beneficiary. (Prob. Code, § 5652.) These deeds can be used only for certain property: generally a home or other parcel with one to four residential units, or a condominium-type unit, and not farmland over 40 acres. (§ 5610.) The law authorizing these deeds is set to expire January 1, 2032, but deeds signed before then remain effective. (§ 5600.)

The Small Estate Affidavit

Money in bank accounts, personal belongings, and other personal property may be collected by a simple sworn affidavit when the total value of the California estate is within the limit. (Prob. Code, § 13100.) Real estate cannot be transferred this way, although its value generally counts toward the limit. The affidavit may be used only if no probate is pending or has been completed in California, or if the estate’s personal representative consents in writing. (Prob. Code, § 13108.)

The affidavit may be used only after 40 days have passed since the death. The successor signs it under penalty of perjury and attaches a certified copy of the death certificate and form DE-300. (Prob. Code, § 13101.) Banks and others who rely on it in good faith are protected, so most will accept it. (Prob. Code, § 13106.)

Who is the proper successor? If there is a will, the beneficiaries named in it. If there is no will, the people who inherit under California’s intestate succession laws. (Prob. Code, § 13006.) Dying “intestate” simply means dying without a valid will. The spouse or registered domestic partner and the children usually inherit first. If there are no children, the law looks to the parents, then to brothers and sisters and their children, then to grandparents. (Prob. Code, §§ 6401, 6402.)

The Trap in the Shortcut: The Decedent’s Debts

A person who takes property by small estate affidavit becomes personally liable for the decedent’s unsecured debts, up to the value of the property received, less any liens. (Prob. Code, § 13109.) Someone who uses the affidavit fraudulently may have to repay three times the property’s value. (§ 13111.)

The same kind of liability follows the other shortcuts described below. (Prob. Code, §§ 6611, 13156, 13204.) It matters most when there are large medical bills from the decedent’s final care. In some cases, the family is better off with a probate, where creditors must present their claims within a fixed period. (Prob. Code, § 9100.)

The Family Home: A New Petition Up to $750,000

Since January 1, 2025, California has offered a simpler court procedure for the decedent’s primary residence. The heirs or beneficiaries may petition the court to confirm that the home passes to them, without a full probate, if its value does not exceed the limit ($750,000 for deaths from April 1, 2025, through March 31, 2028). (Prob. Code, §§ 13150, 13151, 13152.) The home need not be where the decedent was living at the time of death.

The petition (form DE-310) may be filed 40 days after the death. A probate referee appraises the home, the other heirs receive notice, and there is a hearing. When the court signs the order (form DE-315), it is recorded with the county recorder. (Prob. Code, § 13154.) The petitioners are liable for the decedent’s unsecured debts up to the home’s net value. (§ 13156.)

Real Property of Small Value

For real estate worth no more than $69,625 in total (for deaths on or after April 1, 2025), a successor may file an affidavit with the court six months after the death. (Prob. Code, § 13200; form DE-305.) A probate referee must appraise the property, and the affiant must swear that the funeral expenses, the expenses of the last illness, and all unsecured debts have been paid. The court clerk issues a certified copy, which is recorded. (§ 13202.) Because California real estate is rarely worth so little, this procedure is seldom used.

Vehicles and Manufactured Homes

A vehicle registered in the decedent’s name alone may be transferred to the heirs or will beneficiaries, whatever its value, if nothing else in the estate requires probate. (Veh. Code, § 5910.) The DMV uses its Affidavit for Transfer Without Probate (REG 5) with the title and a death certificate. The heir states that the decedent’s unsecured creditors have been paid, and takes on the same debt liability as a small estate affidavit. (Veh. Code, § 5910, subd. (c).) An inherited vehicle is generally not subject to use tax. If the title names a transfer on death beneficiary, the vehicle belongs to that person. (Veh. Code, § 5910.5.) A vehicle with a loan or lease on it remains subject to the lender’s rights and needs careful handling.

Manufactured and mobile homes registered with the Department of Housing and Community Development are transferred through a similar certificate after 40 days, whatever their value, if nothing else in the estate requires probate (Health & Saf. Code, § 18102), using HCD form RT 475.2.

The Surviving Spouse or Domestic Partner

Property that passes to a surviving spouse or registered domestic partner, under a will or by intestate succession, needs no probate. (Prob. Code, § 13500.) The spouse may confirm title through a spousal property petition (form DE-221), whatever the size of the estate. (Prob. Code, § 13650.) A spouse may also collect up to $20,875 in final wages from the employer at any time after the death, with no waiting period. (Prob. Code, § 13600.)

Caution is needed. A spouse who takes property without probate may be personally liable for the decedent’s debts, up to the value of the property. (Prob. Code, §§ 13550, 13551.) The spouse may instead elect, generally within four months after a personal representative is appointed, to have the property administered in probate, where creditor claims are cut off after a fixed period. (§ 13502.)

When the estate is small, the spouse (including a registered domestic partner) and minor children may also ask the court to set it aside to them, if its net value is within the limit ($107,900 for deaths on or after April 1, 2025). (Prob. Code, § 6602.) An inventory and appraisal and a hearing are required.

Probate and Trust Administration

When no shortcut applies, the estate goes through probate. A will does not by itself require probate, and having no will does not rule out the shortcuts. But when probate is needed, it follows a timeline:

• Whoever has the original will must deliver it to the court clerk within 30 days of learning of the death. (Prob. Code, § 8200.)
• The personal representative files an inventory and appraisal within four months after being appointed. (Prob. Code, § 8800.)
• Creditors must present claims within four months after appointment or 60 days after notice, whichever is later. (Prob. Code, § 9100.) Separately, a lawsuit on a debt of the person who died generally must be filed within one year after the death. (Code Civ. Proc., § 366.2.)

Property held in a trust avoids probate, but the successor trustee has duties of its own, beginning with a notice to the beneficiaries and heirs within 60 days after the death. (Prob. Code, § 16061.7.) Trustees must also account to the beneficiaries, handle claims (a trustee may use an optional court procedure to cut off creditor claims (Prob. Code, § 19003)), and file tax returns. Many trustees need an estate planning lawyer’s help.

Our probate assistance page explains how we help families with these questions and, when needed, refer them to an experienced probate lawyer.

Taxes

• Final income tax returns. The decedent’s final federal and California returns are due on the usual dates. (IRS; FTB.)
• Estate tax. California has no estate or inheritance tax for current deaths. (State Controller.) The federal estate tax applies only to estates above $15,000,000 for 2026 deaths. (IRS.)
• Property tax. Under Proposition 19, a parent’s home passed to a child keeps its property tax value only if the child makes it his or her principal residence and files for the homeowners’ exemption within one year, and only up to a limit of about $1 million above the existing taxable value. (BOE; Rev. & Tax. Code, § 63.2.)

Transfer Property the Right Way

As a wrongful death heir, the last thing you want is to transfer property the wrong way and take on the decedent’s debts, or to let the estate’s creditors reach money that belongs to the family. That is especially true when there are large bills from your loved one’s final medical care.

Before signing any affidavit or petition, have a lawyer look at the whole picture: what passes outside probate, which shortcut fits, what debts exist, and how the wrongful death and survival claims will be handled. Laws exist to protect creditors and every heir. Considering everyone’s rights at the start avoids needless disputes later.

Authorities

• Code Civ. Proc., §§ 366.2, 377.30, 377.32, 377.60, 377.61.
• Prob. Code, §§ 210, 890, 5302, 5600, 5610, 5652, 6401, 6402, 6602, 6611, 7001, 8200, 8800, 9100, 13006, 13050, 13100, 13101, 13106, 13108, 13109, 13111, 13150, 13151, 13152, 13154, 13156, 13200, 13202, 13204, 13500, 13502, 13550, 13551, 13600, 13650, 16061.7, 19003.
• Veh. Code, §§ 5910, 5910.5.
• Health & Saf. Code, § 18102.
• Rev. & Tax. Code, §§ 63.2, 480.
• Estate of Riccomi (1921) 185 Cal. 458.
• Estate of Bright v. Western Air Lines, Inc. (1951) 104 Cal.App.2d 827.
• Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256.