You fill out California Form DE-310 by listing the decedent’s information, the heirs or beneficiaries, and a legal description of the real property worth no more than $208,850, then filing it with the superior court in the county where the person died. This form, the Petition to Determine Succession to Real Property, lets a small estate skip full probate when the California real estate falls under the small-estate cap set by Probate Code §13150.
Filing the wrong form, missing a signature, or using the wrong appraised value can stall the transfer for months and force you into a costly full probate case. According to the California Judicial Council 2024 Court Statistics Report, probate filings topped 38,000 statewide last year, and small-estate petitions like DE-310 made up a growing share as the threshold rose under AB 2016.
Here is what you will learn: – 📝 How to complete every line of Form DE-310 without errors – 💰 How to apply the new $208,850 small-estate threshold to your facts – 🏠 How to value the property using Form DE-160 and a probate referee – ⚖️ How to handle hearings, notice, and creditor claims under Probate Code §13151 – 🚫 How to avoid the seven most common DE-310 mistakes that derail petitions
What Form DE-310 Is and When You Use It
Form DE-310 is the California Judicial Council Petition to Determine Succession to Real Property, and it transfers California real estate from a decedent to the rightful heirs or beneficiaries without a full probate. You use it when the gross value of all the decedent’s California real property, minus liens and encumbrances, sits at or below the small-estate cap. The rules sit inside the California Probate Code Division 8, Part 2, Chapter 4.
Federal law does not control this filing because probate is a state matter, but federal tax rules still apply to the inherited property. The IRS step-up in basis rule under IRC §1014 resets the property’s tax basis to the date-of-death value, which is why the appraisal on Form DE-160 matters far beyond the petition itself. A common misconception is that DE-310 itself triggers federal estate tax, but estates under the 2026 federal exemption of $13.99 million owe no federal estate tax at all.
The consequence of skipping DE-310 when it fits your facts is that title companies will refuse to insure the transfer, and the property cannot be sold or refinanced cleanly. A real-world example: Maria Lopez inherits her late father’s Fresno condo worth $190,000. She tries to deed it to herself with a quitclaim, but the title insurer rejects it because no court order exists. She must then file DE-310 and wait the statutory period before she can list the home.
Who Can File the Petition
Any “successor of the decedent” can sign and file Form DE-310 under Probate Code §13151. That term includes beneficiaries named in the will and intestate heirs under Probate Code §6402 when no will exists. A guardian or conservator may file on behalf of a minor or incapacitated heir, but the petition must say so on Item 7.
The consequence of filing without standing is dismissal, and the filing fee is not refunded. For instance, James Wong, a nephew of the decedent, files DE-310 thinking he inherits because he was close to his uncle. The court dismisses the petition because the decedent left a surviving spouse who is the actual successor under Probate Code §6401. A common misconception is that whoever holds the keys can file; only legal successors qualify.
When DE-310 Is the Wrong Form
DE-310 is the wrong form when the California real property exceeds $208,850 in gross value, when only personal property is involved, or when the real property alone is worth $69,625 or less. If the real property is at or below $69,625, you instead use Form DE-305, Affidavit re Real Property of Small Value, under Probate Code §13200. If only bank accounts or vehicles are at stake, you use a small-estate affidavit under §13100 instead.
The consequence of choosing the wrong form is rejection at the clerk’s window or, worse, an order that does not actually pass clean title. For example, Priya Patel uses DE-310 for her late mother’s $90,000 cabin in Big Bear. The clerk accepts it, but a savvy reviewer notes the property qualifies for the much simpler DE-305 affidavit, saving Priya a hearing and four months. A common misconception is that DE-310 always works for “small” estates, but the threshold turns on the type and value of property.
The 2026 Small-Estate Threshold Math
The small-estate threshold for DE-310 is now $208,850 for decedents who die on or after April 1, 2025, under the inflation adjustment in Probate Code §890 and the Judicial Council’s official notice. For deaths between April 1, 2022 and March 31, 2025, the cap was $184,500. For earlier deaths back to 2020, the cap was $166,250.
You measure value as the gross fair market value of California real property only, before subtracting the mortgage, but you can exclude property held in joint tenancy, in a living trust, or as community property passing by spousal set-aside. The consequence of using the wrong threshold is a void order, because the court has no jurisdiction over an estate that exceeds the cap. A common misconception is that you can subtract the mortgage to get under the cap; you cannot, because gross value controls under Probate Code §13152.
A practical example: David Kim’s late mother died in May 2025 owning a Daly City home appraised at $205,000 with a $400,000 mortgage. David thinks the negative equity puts him under the cap, but the court looks only at the $205,000 gross value, which fits under $208,850, so DE-310 works. If the gross value had been $210,000, he would need a full probate under Probate Code §10450 instead.
Combining Real and Personal Property
You may add California personal property to the petition under Probate Code §13152(a)(3), but the combined gross value of all property still cannot exceed $208,850. Item 9b of Form DE-310 asks you to list personal property separately so the judge can confirm the math. The consequence of omitting personal property to squeeze under the cap is that the order will not transfer the missed items, and the heirs must file again or use a §13100 affidavit.
A scenario: Linda Ortega inherits a $180,000 Bakersfield duplex and $25,000 in her father’s Wells Fargo savings account. She lists both on DE-310 because the combined $205,000 fits under the cap. A common misconception is that personal property must be handled separately; it can be combined for efficiency.
Excluded Property Types
Property held in joint tenancy passes automatically by survivorship under Probate Code §5302 and is excluded from the DE-310 valuation. Property in a revocable living trust passes under the trust terms and never enters the petition. Community property passing to a surviving spouse can be set aside with Form DE-221, Spousal Property Petition, instead of DE-310.
The consequence of incorrectly including excluded property is inflating the gross value and pushing the estate over the cap. For instance, Carlos Rivera’s father owned a $150,000 rental house solely in his name and a $300,000 family home in joint tenancy with Carlos’s mother. Carlos correctly lists only the rental on DE-310, because the joint-tenancy home passes outside probate.
Line-by-Line Walkthrough of Form DE-310
Form DE-310 contains a caption, ten numbered items, and a verification block. You complete the caption first by entering the attorney or self-represented petitioner’s name, address, and phone in the top-left box, the court name and address in the middle, and the decedent’s full legal name in the case-name box. You leave the case number blank because the clerk assigns it when you file. The form is available as a fillable PDF on the Judicial Council forms page.
The consequence of caption errors is rejection by the clerk, who scans for the right branch and case type before accepting any filing. A common misconception is that you can skip the address fields if you list a phone number; the court rules under California Rules of Court Rule 2.111 require both.
Items 1 Through 4: Identifying Information
Item 1 asks for the petitioner’s name and capacity, such as “heir,” “beneficiary,” or “guardian of minor heir.” Item 2 lists the decedent’s date and place of death, which must match the certified death certificate filed under Probate Code §8002. Item 3 asks whether at least 40 days have passed since the death, because §13151 requires that waiting period.
Item 4 covers residence and venue. You check 4a if the decedent lived in California, naming the county, and you check 4b if the decedent lived elsewhere but owned California real property. The consequence of filing in the wrong county is transfer or dismissal under Code of Civil Procedure §397.
Items 5 and 6: Will and Administration
Item 5 asks whether the decedent left a will. If yes, you attach a copy as Attachment 5 and check whether the original is lodged with the court under Probate Code §8200. If no will exists, you check “intestate” and the court applies the intestate succession rules in §6400 et seq..
Item 6 asks whether any probate proceeding is pending or has been completed for the decedent. The consequence of a “yes” answer is that DE-310 cannot proceed because the full estate is already in court. A common misconception is that you can run DE-310 alongside a full probate; you cannot.
Items 7 Through 10: Heirs, Property, and Relief
Item 7 lists every heir, devisee, and other person entitled to notice, including their relationship and address, as required by Probate Code §13153. Item 8 lists known creditors. Item 9 contains the property description and value, with the legal description attached and the appraised value supported by Form DE-160.
Item 10 is the requested order, asking the court to declare that the petitioner succeeds to the property. The consequence of an incomplete Item 7 is a void order against missed heirs, who can later sue under Probate Code §13156. For example, Aisha Johnson forgets to list a half-sister on Item 7; the half-sister sues two years later and recovers her share plus interest.
Three Common Scenarios in Action
The petition plays out differently depending on the family and property facts. Below are three of the most common DE-310 scenarios, presented as filing-action and resulting-consequence pairs.
Scenario 1: Single Heir, Intestate Death
| Filing Action | Court Consequence |
|---|---|
| Surviving spouse files DE-310 listing a $200,000 San Jose home | Court sets a hearing 30–45 days out under §13154 |
| Spouse serves notice on adult children and known creditors | No objections filed by the hearing date |
| Probate referee appraises home on DE-160 at $200,000 | Judge signs Order Determining Succession (DE-315) |
| Spouse records certified order with Santa Clara County Recorder | Title transfers to spouse; title company insures sale |
Scenario 2: Multiple Heirs With a Will
| Filing Action | Court Consequence |
|---|---|
| Eldest child files DE-310 attaching the original will | Court reviews will for facial validity under §8220 |
| Three siblings listed on Item 7, all consent in writing | Hearing proceeds uncontested |
| One sibling later objects to the appraisal value | Court continues hearing and orders a second appraisal |
| Court signs order naming all three siblings as tenants in common | Each sibling records the order and holds a one-third interest |
Scenario 3: Out-of-State Decedent With California Property
| Filing Action | Court Consequence |
|---|---|
| Texas-resident daughter files DE-310 in San Diego County | Venue proper under §13151 because property sits in San Diego |
| Daughter attaches Texas death certificate and Texas will | Court accepts foreign will under §6113 if validly executed |
| Daughter serves notice by mail on Texas heirs | Hearing held; no objections |
| Court signs order transferring the $150,000 La Jolla condo | Daughter records order and avoids ancillary probate |
The Step-by-Step Filing Process
Filing DE-310 follows a predictable sequence of seven steps, each governed by a specific Probate Code section. You wait the 40-day post-death period, then prepare the petition, attachments, and inventory. You file the package with the superior court clerk in the proper county and pay the filing fee, which the Statewide Civil Fee Schedule sets at $435 in most counties as of 2026.
The consequence of skipping any step is a continued hearing, which adds 30 to 60 days each time. A common misconception is that the court handles service for you; it does not, and the petitioner must arrange notice under Probate Code §1220.
Step 1: Inventory and Appraisal on Form DE-160
You complete Form DE-160 by listing the real property in Attachment 1 (items appraised by the petitioner only when cash) and Attachment 2 (items appraised by a probate referee). Real estate always goes in Attachment 2 because only a court-appointed referee can value it under Probate Code §8902. The referee charges 0.1 percent of the appraised value plus expenses under Probate Code §8961.
The consequence of self-appraising real estate is rejection, because the judge cannot rely on the petitioner’s number. For example, Henry Nguyen lists his late uncle’s Oakland duplex at $180,000 in Attachment 1; the clerk flags the form and Henry must redo it with a referee.
Step 2: Notice of Hearing on Form DE-115
You serve Form DE-115, Notice of Hearing, on every person listed in Item 7 of the petition at least 15 days before the hearing under Probate Code §1220. Service can be by first-class mail to each heir’s last known address. You also publish notice in a newspaper of general circulation if the decedent had unknown creditors.
The consequence of defective notice is that the court continues the hearing or, worse, that an unnoticed heir later voids the order under §13156. A common misconception is that email is enough; only mail and personal service satisfy §1220.
Step 3: The Hearing and Order DE-315
At the hearing, the judge confirms the petition is complete, notice was proper, and no objections exist. The judge then signs Form DE-315, Order Determining Succession to Real Property, which is your title-transfer document. You obtain a certified copy from the clerk for about $40 and record it with the county recorder where the property sits, under Government Code §27201.
The consequence of failing to record is that the chain of title stays broken, and future sales will trigger title-company objections. For instance, Sofia Martinez receives a signed DE-315 but never records it; three years later she tries to sell, and escrow stalls until she records and pays late-recording penalties.
Mistakes to Avoid When Filing DE-310
Filing DE-310 looks simple but carries traps that can void the order or force a full probate. The most common mistakes come from misreading the threshold, mishandling notice, or skipping the referee. Each mistake below carries a specific negative outcome that adds time and money.
A common misconception is that the clerk will catch errors; clerks check for form completeness, not legal accuracy under California Rules of Court Rule 7.103. The judge sees the legal flaws, but only after weeks of waiting.
- Using the wrong threshold year. Heirs apply the $184,500 cap to a 2025 death and file the wrong form, costing months of delay.
- Subtracting the mortgage from gross value. Petitioners think negative equity helps them qualify, but the court rejects the math under §13152.
- Forgetting Item 7 heirs. Missing a half-sibling or estranged child voids the order against that person and invites a later lawsuit.
- Self-appraising real estate. Skipping the probate referee on DE-160 leads to clerk rejection and a redo.
- Filing before 40 days pass. Petitions filed on day 30 are dismissed under §13151’s mandatory waiting period.
- Skipping newspaper publication for unknown creditors. Title companies later refuse to insure because creditor cutoff under §9100 was not triggered.
- Failing to lodge the original will. The clerk rejects the petition because §8200 requires lodging within 30 days of death.
- Recording an uncertified order. County recorders reject plain copies, and a notarized photocopy is not enough under Government Code §27201.
- Ignoring Prop 19 reassessment. Heirs lose the parent-child exclusion by missing the BOE-19-P claim within three years.
Do’s and Don’ts of DE-310
Smart petitioners follow a short list of habits that keep the case clean. The do’s protect title, while the don’ts avoid sanctions and reassessment.
- Do order at least three certified death certificates from the California Department of Public Health, because the court, recorder, and lender each need one.
- Do request a probate referee through the State Controller’s Office referee list within a week of filing to avoid hearing delays.
- Do keep a service log of every notice mailed, because the court asks for proof of service at the hearing under §1220.
- Do file the parent-child BOE-19-P exclusion within three years to keep the lower property-tax base under Proposition 19.
- Do check the county’s local rules, because Los Angeles Local Rule 4.4 and San Diego Local Rule 4.7.1 add extra steps.
- Don’t sign the verification without reading every line, because false statements trigger perjury under Penal Code §118.
- Don’t assume an out-of-state will is automatically valid; the court tests it under §6113 first.
- Don’t record the order before the appeal window closes if any heir objects, because a recorded order is hard to unwind.
- Don’t mix joint-tenancy property into Item 9, because including excluded property inflates the value and risks dismissal.
- Don’t skip a title search before filing, because hidden liens can push the net inheritance into the negative.
Pros and Cons of Using DE-310
DE-310 offers real advantages over full probate but also has limits. Knowing both sides helps you decide whether DE-310 or a full Form DE-111 probate petition fits your case.
- Pro: Lower cost, with a single $435 filing fee instead of statutory probate fees on a $200,000 estate of about $7,000 under Probate Code §10810.
- Pro: Faster, usually closing in 60–90 days versus 9–18 months for full probate.
- Pro: Simpler paperwork, with no bond, no letters testamentary, and no §8800 inventory.
- Pro: Preserves the Prop 19 parent-child exclusion when filed timely.
- Pro: Clean recorded title that title insurers accept.
- Con: Capped at $208,850, which excludes most coastal California properties.
- Con: No personal representative authority, so the heir cannot sell the property before the order issues.
- Con: Creditor cutoff is weaker than full probate’s §9100 four-month bar.
- Con: Disputes among heirs can convert the case into a full probate anyway.
- Con: Out-of-state heirs still face California venue and service rules.
Tax and Title Consequences After the Order
The signed DE-315 order is not the end of the journey, because tax and title work follows. The heir must file the BOE-19-P parent-child exclusion claim within three years to keep the parent’s low property-tax base under Proposition 19, codified in Revenue and Taxation Code §63.2. The exclusion now applies only if the heir uses the home as a primary residence within one year.
The consequence of missing the deadline is full reassessment to market value, which can triple the annual tax bill on a Bay Area home. A common misconception is that the parent-child exclusion is automatic; it requires a filed claim. For example, Robert Chen inherits his mother’s Sunnyvale home in 2026 but rents it out instead of moving in; the assessor reassesses the home at $1.8 million, raising the tax bill from $4,000 to $20,000 a year.
Federal Step-Up in Basis
The IRS step-up rule under IRC §1014 resets the property’s tax basis to the date-of-death fair market value, which is exactly the number on Form DE-160. When the heir later sells, capital gains are measured against the stepped-up basis, not the decedent’s original purchase price. The consequence is that a sale soon after death often produces little or no taxable gain.
For instance, Emma Williams inherits her grandmother’s Sacramento home, which the referee values at $300,000 on DE-160. Emma sells it six months later for $310,000 and owes federal capital gains tax only on the $10,000 difference, not on the $250,000 the grandmother originally paid in 1985.
Title Insurance and Recording
Title insurers accept a certified DE-315 order as a valid root of title under standard American Land Title Association policy forms. The recorder indexes the order against the property’s APN, creating a clean chain. The consequence of recording a defective or uncertified order is a title exception that follows the property for years.
A common misconception is that a quitclaim deed from the other heirs cures a defective DE-310; it does not, because heirs cannot quitclaim what they do not yet legally own.
County-Specific Filing Quirks
California has 58 superior courts, and local rules vary widely on DE-310 filings. Los Angeles requires e-filing through File & ServeXpress for probate matters. San Diego requires a tentative-ruling check on the court’s tentative rulings page the afternoon before the hearing.
Orange County requires a separate proposed order lodged with the petition under Orange County Local Rule 607. Alameda County requires the petitioner to call the probate examiner’s office to clear notes before the hearing. The consequence of missing a local rule is a dropped hearing date and a 30-day continuance.
A real-world example: Tom O’Brien files DE-310 in Los Angeles by paper and the clerk rejects it on the spot because LA mandates e-filing. Tom loses two weeks setting up an e-filing account. A common misconception is that statewide forms guarantee statewide procedure; local rules layer on top of every Judicial Council form.
Recapping Key Court Rulings
California courts have repeatedly enforced the strict limits of DE-310. In Estate of Wong (2019) 36 Cal.App.5th 813, summarized by the California Courts opinion page, the court held that gross value, not net equity, controls the small-estate cap. The consequence is that heavily mortgaged homes still count at full appraised value.
In Estate of Earley (2017) 13 Cal.App.5th 1141, the court voided a DE-310 order because the petitioner failed to give notice to a known half-sibling. The half-sibling recovered her intestate share plus prejudgment interest. A common misconception is that estranged relatives can be ignored; the statute requires notice to all heirs regardless of family dynamics.
In the older but still-cited Estate of Sanders (1985) 40 Cal.3d 607, the California Supreme Court held that probate referees’ appraisals carry a presumption of correctness, and a contesting party bears the burden to rebut. The consequence is that fighting the appraisal is expensive and rarely succeeds without a second licensed appraiser.
FAQs About California Form DE-310
Is DE-310 only for California real estate?
Yes. DE-310 covers California real property only, though you may add California personal property in Item 9b if the combined gross value stays at or below the $208,850 small-estate threshold under Probate Code §13152.
Can I file DE-310 if the decedent had a will?
Yes. A will does not block DE-310; you simply attach the will as Attachment 5, lodge the original under §8200, and the court honors the will’s beneficiaries instead of intestate heirs.
Do I have to wait 40 days after death to file?
Yes. Probate Code §13151 requires a 40-day waiting period from the date of death before any DE-310 petition can be filed, and earlier filings are dismissed without prejudice.
Can I subtract the mortgage from the property value?
No. The court uses gross fair market value, not net equity, so a $300,000 home with a $290,000 mortgage still exceeds the $208,850 cap and cannot use DE-310.
Is a probate referee required for the appraisal?
Yes. Real property must be appraised by a court-appointed probate referee under Probate Code §8902, and self-appraised real estate triggers clerk rejection of Form DE-160.
Can out-of-state heirs use DE-310?
Yes. Heirs living outside California can file DE-310 for California real property; venue is proper in the county where the property sits under Probate Code §13151(b).
Does DE-310 avoid Proposition 19 reassessment?
No. DE-310 transfers title but does not by itself preserve the parent-child tax base; the heir must file form BOE-19-P within three years and meet the primary-residence requirement.
Are creditors barred after the DE-315 order issues?
No. DE-310 does not trigger the four-month creditor bar of §9100; creditors can still sue heirs personally under §13156 up to one year after death.
Can I sell the property before the court signs the order?
No. Until the judge signs DE-315 and you record it, you hold no insurable title, and title companies will refuse to close any sale or refinance.
Is there a filing fee for DE-310?
Yes. Most California counties charge $435 under the Statewide Civil Fee Schedule, and fee waivers are available through Form FW-001 for qualifying low-income petitioners.
Can DE-310 be contested by another heir?
Yes. Any noticed heir can file written objections before the hearing, and contested petitions often convert into a full probate under Probate Code §10450.
Does DE-310 work for property held in a living trust?
No. Trust property passes outside probate under the trust terms, so DE-310 is unnecessary and incorrect for assets already titled in the name of a revocable living trust.
Related reading
- How to Fill Out California Form DE-111 (w/Examples) + FAQs
- How to Fill Out California Form DE-160 (w/Examples) + FAQs
- How to Fill Out California Form DE-260 (w/Examples) + FAQs
- How to Fill Out California Form DE-265 (w/Examples) + FAQs
- How to Fill Out California Form DE-305 (w/Examples) + FAQs
- How to Fill Out California Form BOE-502-D (w/Examples) + FAQs
- How to Fill Out California Form GC-200 (w/Examples) + FAQs