If someone dies in California without a will and leaves behind real estate or bank accounts worth less than $166,250 (as of 2024), their heirs may use a California heirship affidavit to claim those assets without going through full probate. It’s not a court order, but a sworn statement that identifies who inherits under state law. People turn to this process when they need to transfer title to a house, close a deceased parent’s bank account, or sell inherited property quickly and affordably.

What is a California heirship affidavit and when does it apply?

An heirship affidavit is a legal document signed under penalty of perjury that lists the deceased person’s heirs, explains how they’re related, and confirms no will was left. It only works for estates that meet California’s small estate threshold and don’t include certain types of property like real estate held in joint tenancy or assets with designated beneficiaries (e.g., payable-on-death accounts). It’s commonly used by adult children, siblings, or parents of someone who died intestate (without a will) and owned modest assets.

What forms do you actually need?

California doesn’t have one official “heirship affidavit form” issued by the state. Instead, you must prepare a custom affidavit that meets statutory requirements under Probate Code § 13100. The document must include the decedent’s full name and date of death, a list of all known heirs with their relationship and contact info, a description of the assets being claimed, and a statement that no probate proceeding has been opened. Many people start with a template, but it must be tailored not copied verbatim to match the facts of the case. You’ll also need a certified copy of the death certificate and sometimes a notarized witness declaration.

Who can sign the affidavit and what makes it valid?

The affidavit must be signed by at least two disinterested witnesses people who aren’t heirs and didn’t benefit from the estate. They must have personal knowledge of the family relationships and the decedent’s death. Heirs themselves cannot sign as witnesses. A common mistake is asking a sibling or cousin to witness the affidavit: that invalidates it. Another frequent error is skipping notarization. Every signature including both witnesses and the person filing must be notarized. If the affidavit is missing even one required element, institutions like banks or county recorders will reject it.

Where and how do you file it?

You don’t file the heirship affidavit with a court. Instead, you submit it directly to the institution holding the asset like a bank, credit union, or county recorder’s office. For real property, you’ll record a certified copy with the county where the land is located. Some counties, like Los Angeles or San Diego, require additional forms or fees when recording. To avoid delays, review the step-by-step instructions for submitting an affidavit, including which documents to attach and how to get certified copies.

What happens if the estate is too big or there’s a will?

If the gross value of the estate exceeds $166,250, or if the decedent left a will even a handwritten one you can’t use an heirship affidavit. You’ll need either a formal probate proceeding or a simplified procedure like a petition for succession (for estates under $166,250 with real property). Trying to use an heirship affidavit in those situations won’t work: banks and title companies will refuse it, and you risk wasting time and money. Before preparing anything, confirm the estate’s value and whether a will exists. You can find more about eligibility in the list of requirements for beneficiaries and heirs.

Can you file an heirship affidavit if there’s disagreement among heirs?

No. The process assumes all heirs agree on who inherits and how assets should be divided. If one heir contests another’s claim or if someone believes they were left out the affidavit isn’t appropriate. Disputes require court involvement, usually through probate or a quiet title action. Using an heirship affidavit when heirs disagree may lead to liability later, especially if someone files a claim after assets have already been distributed.

What’s the next step after preparing the affidavit?

Once your affidavit is complete and notarized, gather these items:

• A certified copy of the death certificate
• Proof of heirship (e.g., birth certificates, marriage licenses)
• A list of all known heirs and their current addresses
• Documentation describing the asset(s) being claimed

Then submit everything to the relevant institution. For real estate, take the package to the county recorder’s office in the county where the property sits. If you're unsure whether your situation qualifies or need help drafting a valid affidavit review the full filing process for heirship affidavits in California courts, which walks through each requirement and common pitfalls.

Before sending anything, double-check that every required fact is included, all signatures are notarized, and no heir acted as a witness. If you’re claiming real property, call the county recorder’s office first they often have specific formatting rules or supplemental forms. And if the estate includes assets outside California, consult an attorney: heirship affidavits only apply to property located within the state.