What Happens to Non-Primary Residences Under California’s New Small Estate Laws?

California’s updated probate laws, effective April 1, 2025, offer families a faster, more affordable way to transfer a decedent’s primary residence outside of probate—but what about other types of real estate? Rental homes, vacation properties, undeveloped land, and even modest non-residential parcels are now in a gray area. Under the revised Probate Code, there is no simplified process to transfer non-primary residence real property if it exceeds a certain value. This change leaves many families surprised to learn that full probate may still be required.

What Changed Under AB 2016?

Assembly Bill 2016 (AB 2016) revised California’s small estate provisions, introducing two main updates:

·       Simplified court petition (Form DE-310) is now available only for the decedent's primary residence valued at $750,000 or less.

·       Affidavit procedure for real property (Form DE-305) can still be used, but only if the decedent’s interest in the property is $69,625 or less.

This means that for non-primary real estate valued over $69,625, there is no summary procedure available. These limits are updated periodically for inflation, so it is important to check the current thresholds at the time of death.

The Disappearance of the Old DE-310 Option

Prior to 2025, if a decedent died owning real property worth less than the statutory cap (previously $61,500), heirs could file a simplified petition (Form DE-310) for any real property. That included rentals, vacant lots, and vacation homes. This made it easier to administer small estates, especially those that included modest real estate assets.

Under the new law, Form DE-310 has been restructured and restricted: it may now only be used for the decedent’s primary residence. The change was intended to help families avoid probate on their homes, especially in areas with high housing prices. Unfortunately, it removed a flexible tool that previously benefited small, non-residential estates and left no replacement for that process.

This has caused a procedural gap for successors who inherit property that is neither a primary residence nor low enough in value to qualify under the real property affidavit limits.

No Simplified Process = Full Probate for Modest Properties. Let’s say a decedent owned a small rental property worth $100,000. Under the new law:

• The property is not a primary residence.

• Its value exceeds the $69,625 threshold for using the real property affidavit (DE-305).

Therefore, the only legal option is to initiate a full probate proceeding.  This can feel burdensome when the total estate is modest and heirs are otherwise prepared to manage or maintain the property.

In fact, many families may not realize that these new restrictions apply until they attempt to file forms with the court. Clerks are now instructed to reject petitions that reference non-primary residences under Form DE-310. Even estates that clearly fall within the former "small estate" scope may face procedural hurdles due to this change.

Examples of Affected Property Types

• Rental Properties: Common in multigenerational families where parents or grandparents owned an income-producing property.

• Vacation Homes: Often not the decedent’s primary residence but valued under $750,000—and therefore no longer eligible for simplified court petition.

• Vacant Land or Timeshares: Frequently overlooked but still subject to probate unless value is below $69,625.

• Commercial Storefronts or Small Parcels: Even if unencumbered or jointly held, the decedent’s share value can trigger the need for probate.

Exceptions That Still Work

While most heirs will now face probate for non-primary real estate over the limit, a few exceptions may apply:

• Surviving Spouse Petitions (DE-221): A spouse can still file a simplified spousal property petition to transfer all property, regardless of type.

• Affidavit of Small Value (DE-305): Can still be used for any real property, but only if the decedent’s interest is under $69,625.

• Revocable Living Trusts and Transfer-on-Death Deeds: If proper estate planning was done in advance, probate may still be avoided entirely.

If the decedent created a revocable living trust that holds title to the non-primary residence, the successor trustee can transfer or sell the property without going to court at all. Similarly, a properly recorded transfer-on-death deed allows real estate to pass automatically to the named beneficiary.

Planning Recommendations

To avoid the new probate trap, families should:

1.     Place non-primary real estate into a revocable living trust.

2.     Consider a transfer-on-death deed, where available and appropriate.

3.     Avoid assuming that "small estate" rules apply to all real estate.

4.     Review older estate plans that relied on the pre-2025 version of DE-310.

Families with modest real estate assets—especially second homes, rental units, or undeveloped parcels—should speak with an estate planning attorney to determine how best to structure title and avoid unnecessary court procedures.

Looking Ahead: Will the Law Be Updated Again?

Many legal professionals have noted this procedural gap and hope for future legislation to restore or replace a simplified method for transferring low-value non-primary residences. Until that happens, the probate courts have little discretion. The Judicial Council's revised forms and the updated Probate Code leave no pathway to file a petition for real property unless it meets the strict criteria.

Organizations such as the California Lawyers Association and probate referee associations have flagged the issue, and proposed revisions could appear in future legislative sessions. In the meantime, proactive planning is the best way to avoid the full weight of the probate system.

Conclusion: A Surprising Gap in the Law

California’s 2025 probate reform has made it easier to transfer family homes—but harder to avoid probate for smaller real estate assets that aren't the decedent's residence. Until new legislation addresses this gap, full probate will be required for non-primary real property exceeding $69,625 in most cases.

If you’re unsure whether your family’s estate qualifies for simplified procedures, consult a probate and estate planning attorney. At Devey Law, we’re here to help you navigate the new rules and protect your legacy.

Contact us today to review your estate plan or discuss your options if a loved one has passed away owning real estate in California.

Need help with Incapacity Planning, Estate Planning, Trust Administration, Probate, or Business Law? Devey Law is here for you. Call us at 805.720.3411 or email info@deveylaw.com to schedule a consultation.

This blog is for informational purposes only and does not constitute legal advice. Reading this blog does not create an attorney-client relationship between you and Devey Law, A Professional Law Corporation. Laws and regulations may change, and the information provided may not reflect the most current legal developments.