Effective April 1, 2025, the California Legislator revised the Probate Code to afford for a more efficient and less costly administration of a Primary Residence of a person passing away on or after April 1, 2025. Rather than being subject to formal Probate, and the applicable statutory fees of $18,000 plus another few thousand in court and related costs, the summary administration is now subject to a Petition to Determine Succession to Primary Residence (new judicial council form DE-310), and the expense of administration is no longer subject to a statutory fee.

This summary procedure still requires a court hearing and Notice to all interested parties, but the speed and expense of administration are far more efficient.  Notably, this summary administration only applies to a principal residence as determined by the filing of a Homeowners' exemption on the subject property. Any other real property or financial assets belonging to a decedent (that is not the principal residence/ subject to homeowners' exemption filing) remains open to formal Probate, and the applicable statutory fees.

The main contrast between the formal Probate and the summary Probate relates to Creditors and assumption of personal liability by the heirs.

Under formal Probate, creditors are permitted generally four months after issuance of Letters to file and present Creditors' Claims in the Estate. Conversely, under the summary procedure, the Petition to Determine Succession to Primary Residence cannot be filed earlier than 40 days following the death, and the persons entitled to distribution of the primary residence  become personally liable for the decedent's debts (such as credit cards, personal loans, medical bills, etc.) up to the full fair market value of the personal residence transferred to them via this procedure.

Heirs/Beneficiaries do have a choice whether to utilize the forma Probate - where creditors are limited to filing claims only within the first four months after letters are issued (except for some government entities such as the CA Franchise Tax Board, who have 18 months after Notice is given to the FTB to file a claim); or, conversely -  utilize the summary Probate procedure where a principal residence is concerned, and take on the personal liability of the unsecured debts/creditors of the deceased owner. Clearly, the latter would make sense where debts, creditors or unpaid taxes are not an issue.

Unlike formal Probate, where Notice of the Administration needs to be published in a newspaper as a requirement for the Petition for Probate to be heard by the Court, the summary probate has no "publication" requirement. Likewise, there is no requirement to formally notify known creditors.

Any secured creditors (mortgage or lien holders) are unaffected by either procedure, as their interests in the property is secured - is not discharged, but remains and needs to be taken on by the heirs/beneficiaries. It is notable that, in most cases, existing mortgages are not merely "assumed" by the new owners; rather - the new owners are qualified as brand-new borrowers and take the mortgage at current interest rates - provided they manage to qualify. If they can't qualify to take on the mortgage, they would be forced to sell the property or risk losing it to the bank. The "assumption" of an existing loan remains in the discretion of the respective lender, and is tied to the creditworthiness of the new owners.

Another critical difference between the two procedures is that, in formal Probate, the court usually appoints One person as Estate Representative (although co-representatives can also be appointed), whereas, under the Petition to Determine Succession to Primary Residence all heirs must be located and sign the Petition (unless there is a Will that leaves a named Executor). 

For those reasons, a careful analysis of ALL the circumstances is necessary, and where the likelihood of creditors and uncooperative or hostile heirs exists, the safer approach is to choose formal Probate which limits the timeline for filing and presenting claims against the Estate, and appoints only one person in charge of the administration and distribution of the probate property. This is especially important if the real property needs to be sold quickly to avoid foreclosure, and involving multiple heirs in the sale of the property is impractical or impossible due to lack of cooperation or hostility.

And, where assets in addition to a principal residence are left in the Decedent's individual name with no beneficiaries named, such assets - to the extent they exceed the probate threshold of $208,850 (valid through March 31, 2028) - will still be subject to formal Probate.

While the new Petition to Determine Succession to Primary Residence aims to simplify the transfer of a decedent's home to their heirs, it could be a trap for the unwary where important considerations are not fully understood by the heirs - especially the fact that the decedent's debts are "handed over" to the heirs and become their (and their families') personal liability.

You would be wise to consult an experienced Probate Attorney to engage in the risk - benefit analysis of choosing between the formal Probate process (which includes the formal creditor notification process and formalities of allowing or rejecting properly presented Claims), or the summary Probate procedure, where the primary residence's value as of date of death is $750,000 or less.

Our Office offers a complimentary 15-minute Probate consultation to those that find themselves having to make this choice.