California estate laws govern how property passes at death through the state’s Probate Code, which recognizes wills and trusts, sets default inheritance rules when neither exists, treats married couples’ property under community property principles, and offers several court procedures ranging from full probate to streamlined affidavits. California imposes no state estate or inheritance tax, though federal estate tax still reaches larger estates.1California State Controller’s Office. California Estate Tax The rules that matter most depend on what the deceased person left behind, how their property was titled, and who survived them.
What Makes a Will Valid in California
California recognizes two kinds of wills. A formal will must be written, signed by the person making it, and witnessed by at least two people who are present at the same time and understand they are signing a will.2California Legislative Information. California Code Probate Code 6110 The witnesses do not need to read the document or know its contents. They need to see the signing or hear the person acknowledge the signature.
A holographic will takes no witnesses at all. The signature and the material provisions must be in the handwriting of the person making it.3California Legislative Information. California Code PROB 6111 Typed sections and preprinted form language do not count as material provisions, though a statement of intent can appear on a commercial will form. A date is not strictly required, but leaving one off causes problems if the holographic will conflicts with another document or if someone later questions whether the writer had mental capacity on the day it was written.
What Happens Without a Will
When someone dies without a valid will, the Probate Code decides who inherits based on family relationships. A surviving spouse or registered domestic partner comes first, but the share depends on what kind of property is involved and who else survives.4Justia. California Code Probate Code – Intestate Succession Generally
For community property, the surviving spouse inherits the deceased spouse’s entire half, which means the survivor ends up owning all of it. Separate property splits differently:
- One child or that child’s descendants: the spouse takes half, the child or descendants take the other half.
- Two or more children: the spouse takes one-third, the children split two-thirds.
- No children but a surviving parent or siblings: the spouse takes half, the parents or siblings split the rest.
- No children, parents, or siblings: the spouse takes everything.
With no surviving spouse, the estate goes first to the deceased person’s children, then parents, then siblings and their children, and on through more distant relatives.4Justia. California Code Probate Code – Intestate Succession Generally When a child has already died, that child’s share passes down to their own children.
These rules have no flexibility. The law does not weigh who was closest to the deceased, who needs the money, or what the deceased might have wanted. Overriding them takes a will or a trust.
Community Property and Separate Property
California is a community property state. Anything earned or acquired by either spouse during the marriage belongs equally to both, including wages, retirement contributions, and property bought with marital funds.5California Legislative Information. California Code FAM 760 When one spouse dies, only their half enters the estate. The surviving spouse already owns the other half outright.6California Legislative Information. California Code PROB 100
Separate property works differently. Assets owned before the marriage, gifts received by one spouse alone, and inheritances stay separate regardless of when they were received, and the owner can leave them to anyone by will. Trouble starts when separate funds get mixed with community funds over years of marriage. Once dollars are commingled in a joint account or spent improving a shared home, tracing which were separate and which were community becomes contentious and expensive.
How property is titled matters just as much. Joint tenancy and community property with right of survivorship both transfer automatically to the surviving co-owner, bypassing probate entirely. The survivor takes full ownership the moment the other owner dies, regardless of what any will says. Title-based transfers override both wills and intestacy rules, which is why checking account titles and property deeds is one of the first steps in any estate review.
Avoiding Probate With a Living Trust
A revocable living trust is the main tool California residents use to keep assets out of probate. You create the trust during your lifetime, transfer assets into it, and name yourself as the initial trustee. Nothing changes practically while you are alive. You keep full control and can revoke or amend the trust at any time. When you die, the successor trustee you named distributes the assets to your beneficiaries without any court involvement.
The step that trips people up is funding the trust. Signing the document is only half the job. Every asset you want the trust to cover must actually be retitled in the trust’s name. Real estate requires a new recorded deed. Bank and investment accounts need transfer paperwork at each institution. Life insurance should name the trust as beneficiary. Anything left in your individual name at death will likely need to go through probate anyway, usually through a pour-over will that sweeps leftover assets into the trust after the court process finishes.
A trust does not eliminate estate administration. The trustee still inventories assets, pays debts and taxes, files returns, and distributes property. But handling that work privately, without public filings or statutory fee schedules, is a real advantage. For most California homeowners, the cost of setting up and maintaining a trust runs far below what probate would cost the same estate.
When Probate Is Required
Assets that do not pass through a trust, joint title, or beneficiary designation go through probate. The process starts with a petition in superior court asking the judge to appoint a personal representative.7California Courts. Guide to Property After Someone Dies If there is a will naming an executor, that person has priority. Without a will, the court appoints an administrator, usually the surviving spouse or closest relative. The representative then collects assets, pays debts and taxes, and ultimately distributes what remains.
Statutory Attorney and Representative Fees
California sets attorney and personal representative compensation by statute, based on the gross value of the estate rather than its net value after mortgages or debts:
- First $100,000: 4%
- Next $100,000: 3%
- Next $800,000: 2%
- Next $9,000,000: 1%
- Next $15,000,000: 0.5%
- Above $25,000,000: a reasonable amount determined by the court
Both the attorney and the personal representative are each entitled to these fees, so the total statutory cost is double the percentages shown.8Justia. California Code Probate Code 10810-10814 On a home worth $1,000,000 with a $600,000 mortgage, the fees are calculated on the full $1,000,000. That produces $23,000 for the attorney and another $23,000 for the personal representative, $46,000 in statutory fees alone, before any extraordinary services for litigation or tax disputes. These numbers drive most of the trust planning done in California.
Shortcuts for Small Estates and Surviving Spouses
Not every estate needs full probate. For deaths on or after April 1, 2025, estates worth $208,850 or less can use a streamlined affidavit to transfer personal property without court supervision.9Judicial Council of California. DE-300 Maximum Values for Small Estate Set-Aside and Disposition The threshold adjusts periodically, so confirm the current figure if the death occurred earlier.
Using the affidavit requires that 40 days have passed since the death and that no probate case is pending.10California Legislative Information. California Code Probate Code 13100 The heir completes a declaration stating their right to the property and presents it, along with a certified death certificate, to the bank, employer, or other institution holding the asset. That institution is then legally required to release it.
One important limit: the affidavit only works for personal property such as bank accounts, vehicles, and belongings. Real property takes a separate court petition. A primary residence can be transferred to heirs through that petition without a full probate case, but the petition process is more involved than an affidavit.11California Legislative Information. California Code Probate Code 13150
Surviving spouses and registered domestic partners have another option that often gets overlooked. When all the property in the estate passes to the surviving spouse by will or by intestacy, the spouse can file a spousal property petition to confirm ownership without full probate.12California Legislative Information. California Code Probate Code 13500 This works for both the deceased spouse’s half of community property and separate property left outright to the spouse. The petition still goes before a judge, but there are no statutory percentage fees, no long creditor claim period, and no Probate Referee appraisal. For couples whose plan simply leaves everything to the survivor, the process can wrap up in weeks.
Property Tax Reassessment Under Proposition 19
Inheriting a California home comes with a property tax consequence many families do not expect. Under Proposition 19, in effect since February 2021, inherited property is generally reassessed to current market value at the time of transfer. For homes purchased decades ago under Proposition 13’s low base-year values, the new tax bill can be dramatically higher.
A limited exclusion exists for parent-child transfers, and in some cases grandparent-grandchild transfers, but only if the child uses the inherited home as their own primary residence and files for a homeowner’s exemption within one year of the transfer.13California State Board of Equalization. Proposition 19 Fact Sheet The exclusion is capped. For transfers between February 16, 2025 and February 15, 2027, the cap is the existing taxable value plus $1,044,586. If the market value exceeds that cap, the difference gets added to the new taxable value, producing a partial reassessment.
Investment and vacation properties do not qualify for the exclusion at all. A child who inherits a rental will see it reassessed to full market value. For families holding appreciated California real estate, Proposition 19 has made tax-focused estate planning more important than it was before 2021.
Federal Estate Tax and Step-Up in Basis
California has no estate or inheritance tax of its own.1California State Controller’s Office. California Estate Tax The federal estate tax still applies, but only to larger estates. For 2026, the federal basic exclusion is $15,000,000 per person.14Internal Revenue Service. Whats New – Estate and Gift Tax A married couple can shelter up to $30,000,000 combined. Estates below those thresholds owe no federal estate tax.
Married couples should know about the portability election. If the first spouse to die does not use the full $15,000,000 exclusion, the surviving spouse can claim the unused portion, but only if the executor files a federal estate tax return (IRS Form 706) for the first spouse’s estate.15Office of the Law Revision Counsel. 26 USC 2010 – Unified Credit Against Estate Tax The return is required even when the estate is far below the filing threshold. Missing the filing causes the unused exemption to disappear permanently, which can cost the surviving spouse’s estate millions down the road.
Step-Up in Basis for Inherited Assets
One of the most valuable tax rules in estate law is the stepped-up basis. When you inherit property, your tax basis resets to the fair market value on the date of the owner’s death.16Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent If a parent bought a home for $200,000 and it was worth $1,200,000 at death, your basis is $1,200,000. Sell it the next month for $1,200,000, and you owe no capital gains tax on the $1,000,000 of appreciation.
California’s community property system goes further. When one spouse dies, both halves of community property receive the stepped-up basis, not just the deceased spouse’s half. This double step-up is a major advantage over common-law states, where only the deceased spouse’s share adjusts. The federal estate tax return, when one is required, is generally due nine months after the date of death, with a six-month extension available if requested before the original deadline.17Internal Revenue Service. Filing Estate and Gift Tax Returns