Understanding the California probate process can save your family thousands of dollars and months of frustration. This comprehensive guide walks you through every step, from filing the initial petition to final distribution of assets.
Key Takeaways
- California probate takes 18-24 months on average
- Costs range from 4-6% of the gross estate value
- For a $1M estate, expect $47,500+ in fees
- Estates under $184,500 may qualify for simplified procedures
- A living trust completely avoids probate
What is Probate in California?
Probate is the court-supervised legal process of administering a deceased person's estate. When someone dies in California, probate serves several purposes:
- Validates the will (if one exists) and ensures it meets legal requirements
- Identifies and inventories all assets owned by the deceased
- Pays debts and taxes owed by the estate
- Distributes remaining assets to heirs and beneficiaries according to the will or California intestate succession laws
In California, probate is governed by the California Probate Code and takes place in the Superior Court of the county where the deceased person lived.
When is Probate Required in California?
Probate is generally required when:
- The deceased owned real estate in California (regardless of value)
- The total value of assets subject to probate exceeds $184,500 (2024 threshold)
- Assets were owned in the deceased's name alone without beneficiary designations
Assets That Avoid Probate
Not all assets go through probate. These bypass the process entirely. Learn more: living trust vs will in California.
- Assets held in a living trust
- Life insurance with named beneficiaries
- Retirement accounts (IRA, 401k) with beneficiary designations
- Bank accounts with payable-on-death (POD) designations
- Property held in joint tenancy with right of survivorship
- Community property with right of survivorship
The 8 Steps of California Probate
The California probate process follows these essential steps:
1File Petition for Probate
Timeline: Within 30 days of death (recommended)
The executor named in the will (or interested party) files a Petition for Probate with the Superior Court. This petition requests the court to:
- Admit the will to probate (or declare intestate succession)
- Appoint the executor (or administrator)
- Grant Letters Testamentary (legal authority to act)
Required documents:
- Original will and codicils
- Death certificate
- Petition for Probate (Form DE-111)
- Duties and Liabilities of Personal Representative (Form DE-147)
- Filing fee ($435-$450 depending on county)
2Notice to Heirs, Beneficiaries, and Creditors
Timeline: 15 days after filing petition
California law requires formal notification to protect everyone's interests:
- Notice of Petition to Administer Estate must be mailed to all heirs and beneficiaries at least 15 days before the hearing
- Published notice in a local newspaper for 3 consecutive weeks
- Notice to creditors published, giving them 4 months to file claims
- Notice to government agencies (Franchise Tax Board, Medi-Cal, etc.)
This notification period protects everyone's rights and allows contests or objections to be raised.
3Initial Probate Hearing
Timeline: 4-8 weeks after filing petition
The court holds a hearing to:
- Validate the will (if any)
- Officially appoint the executor or administrator
- Issue Letters Testamentary or Letters of Administration
- Hear any objections or contests
After this hearing, the executor has legal authority to act on behalf of the estate. They receive "Letters" which serve as proof of authority when dealing with banks, title companies, and other institutions.
4Inventory and Appraisal
Timeline: Within 4 months of appointment
The executor must:
- Identify all assets owned by the deceased
- Determine fair market value as of the date of death
- File Inventory and Appraisal (Form DE-160) with the court
A court-appointed probate referee (independent appraiser) values non-cash assets like real estate, business interests, and personal property. The referee charges 0.1% of the appraised value.
Assets to inventory:
- Real estate
- Bank and investment accounts
- Vehicles, boats, RVs
- Business interests
- Personal property (jewelry, art, collectibles)
- All other property owned by deceased
5Manage Estate and Pay Debts
Timeline: 4-12 months
During probate, the executor must:
- Secure and maintain estate property
- Pay ongoing expenses (mortgage, insurance, utilities)
- Collect debts owed to the estate
- File tax returns (final income tax, estate tax if applicable)
- Review creditor claims and pay valid debts
- Reject invalid claims (creditors can then sue the estate)
All significant actions require court approval. The executor must petition the court for authority to:
- Sell real estate
- Sell securities or business interests
- Operate a business
- Make distributions
Creditor Priority Order
California law mandates the order in which debts must be paid:
- Funeral and burial expenses
- Probate administration costs
- Debts and taxes with priority under federal law
- Medical expenses of last illness
- Wage claims
- General creditor claims
If the estate is insolvent (debts exceed assets), creditors are paid in this order until assets are exhausted.
6Petition for Final Distribution
Timeline: After creditor claim period ends (minimum 4 months)
Once all debts are paid and taxes filed, the executor files a Petition for Final Distribution requesting court approval to distribute remaining assets to beneficiaries.
The petition must include:
- Complete accounting of all income and expenses
- List of all assets to be distributed
- Proposed distribution plan
- Request for executor fees (if any)
- Request for attorney fees
7Final Hearing and Court Order
Timeline: 6-8 weeks after filing petition
The court reviews the accounting and proposed distribution. If everything is in order:
- Court approves the accounting
- Court orders final distribution
- Court approves executor and attorney fees
- Court discharges the executor from duties
8Distribute Assets and Close Estate
Timeline: 2-4 weeks after final order
The executor distributes assets according to the court order:
- Transfer real estate deeds
- Distribute cash to beneficiaries
- Transfer securities and other assets
- Obtain receipts from all beneficiaries
- File final receipts with the court
Once all assets are distributed and receipts filed, the estate is officially closed.
California Probate Timeline
The complete California probate process typically takes:
- Minimum: 9-12 months (simple, uncontested estates)
- Average: 18-24 months (typical estates)
- Complex cases: 2-4 years (contested wills, complex assets, litigation)
Why Does Probate Take So Long?
Several factors cause delays:
- Mandatory waiting periods: 4 months for creditor claims
- Court scheduling: Hearings scheduled 6-8 weeks out
- Court approval required: Every significant action needs a hearing
- Asset location and valuation: Finding and appraising all assets takes time
- Tax returns: Final tax returns must be filed and accepted
- Real estate sales: If property must be sold, add 3-6 months
California Probate Costs and Fees
California probate is expensive. Here's the complete cost breakdown:
1. Statutory Executor and Attorney Fees
California Probate Code §10810 sets statutory fees based on gross estate value:
- 4% of the first $100,000
- 3% of the next $100,000
- 2% of the next $800,000
- 1% of the next $9,000,000
- 0.5% of the next $15,000,000
- Court determines fees on amounts above $25,000,000
BOTH the executor and attorney receive these fees. So fees are doubled.
Examples:
- $500,000 estate: $13,000 executor + $13,000 attorney = $26,000
- $1,000,000 estate: $23,000 executor + $23,000 attorney = $46,000
- $2,000,000 estate: $33,000 executor + $33,000 attorney = $66,000
2. Additional Costs
- Filing fees: $435-$450
- Probate referee: 0.1% of appraised value
- Publication costs: $200-$500
- Bond (if required): $500-$2,000+
- Accounting fees: $1,000-$5,000
- Extraordinary attorney fees: Additional fees for litigation, tax issues, complex matters
Total Probate Cost
Expect total probate costs to be 4-6% of the gross estate value, not counting real estate commissions if property must be sold.
Fees Based on Gross Value
California probate fees are calculated on the gross value of the estate, not the net value. This means:
- A $1M house with a $600K mortgage = fees calculated on $1M
- You pay probate fees on the mortgage balance you owe
- Debts are paid separately—they don't reduce the fee calculation
Simplified Probate Procedures
California offers simplified procedures for smaller estates:
1. Affidavit for Small Estate ($184,500 or less)
If the estate is valued at $184,500 or less (excluding real property), heirs can use a simple affidavit instead of full probate. Requirements:
- At least 40 days have passed since death
- No probate proceeding is pending
- Total estate under $184,500
- No real property (or real property transferred via other means)
The heir presents the affidavit to banks or other institutions, which must release assets without court involvement.
2. Spousal Property Petition
When property passes to a surviving spouse, a simplified Spousal Property Petition can be used instead of full probate. This is much faster (2-3 months) and less expensive.
3. Summary Probate ($184,500 or less)
For estates under $184,500 that don't qualify for the affidavit procedure, summary probate provides a streamlined court process taking 6-9 months.
How to Avoid California Probate
The best strategy is to avoid probate entirely. Here are proven methods:
1. Living Trust (Best Option)
A revocable living trust completely avoids probate for all assets transferred into the trust. Benefits:
- No probate for any assets in trust (regardless of value)
- Works for real estate, bank accounts, investments, business interests
- Assets transfer immediately to beneficiaries
- Private—no public court records
- Incapacity planning included
- Cost: $400-$500 (online attorney-reviewed) vs $27,000-$68,000+ in probate
2. Joint Tenancy with Right of Survivorship
Property owned in joint tenancy automatically passes to surviving owner. However:
- Works only for two-party ownership
- All owners have equal rights during life
- Creditors of any owner can attach property
- Last surviving owner's estate still goes through probate
3. Beneficiary Designations
Name beneficiaries on:
- Life insurance policies
- Retirement accounts (IRA, 401k)
- Bank accounts (POD - Payable on Death)
- Investment accounts (TOD - Transfer on Death)
4. Transfer-on-Death Deeds (Real Estate)
California allows TOD deeds for real estate. The property automatically transfers to named beneficiaries without probate. However:
- Limited control over distribution
- Can create disputes among beneficiaries
- Doesn't help with incapacity planning
- May trigger Medi-Cal recovery
Avoid Probate With a Living Trust
Why put your family through 18-24 months of probate and $27,000-$68,000 in fees? Create your California living trust online in 30 minutes for just $400-$500.
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Create Your Living Trust →Frequently Asked Questions
Can I avoid probate without a trust?
Yes, through joint tenancy, beneficiary designations, and small estate procedures. However, these methods have limitations. A living trust is the most comprehensive solution and the only method that avoids probate for real estate while maintaining your control during life.
What if I die without a will in California?
Your estate still goes through probate, but California's intestate succession laws determine who inherits. Generally: spouse gets community property and 1/3 to all of separate property; children share the rest. If no spouse or children, it goes to parents, siblings, or more distant relatives.
Can the executor speed up probate?
Somewhat. An efficient executor can move things along by: promptly filing documents, responding quickly to court requests, communicating with beneficiaries, and hiring experienced probate counsel. However, mandatory waiting periods and court scheduling create unavoidable delays.
Is probate required if there's a will?
Yes. Having a will does NOT avoid probate. A will must be validated through probate court. Only assets in a living trust, held in joint tenancy, or with beneficiary designations avoid probate.
Can I handle probate myself without an attorney?
California law allows it, but it's not recommended. Probate involves complex legal procedures, strict deadlines, and potential personal liability for mistakes. Most executors hire attorneys, and attorney fees are paid by the estate.
Conclusion
The California probate process is lengthy, expensive, and public. For most families, the best strategy is avoiding probate entirely through proper estate planning. A living trust costs a fraction of probate fees and provides immediate asset transfer, privacy, and incapacity protection.
If you must go through probate, understanding the process helps you prepare for the timeline and costs involved. Work with an experienced probate attorney to navigate the complex requirements and protect your interests.
Take Action Today
Don't wait until it's too late. If you own California real estate or have assets over $184,500:
- Create your living trust to avoid probate entirely
- Take our quiz to see if you need a trust or will
- Call (818) 291-6217 for a free consultation