Probate in California is the court-supervised process of paying a deceased person’s debts and transferring their solely-owned property to the people entitled to receive it. Not every estate has to go through it. When full probate is required, the case usually takes 12 to 18 months and generates attorney and executor fees calculated as a percentage of the estate’s gross value. Smaller estates and surviving spouses often qualify for faster alternatives, and property held in a trust, in joint tenancy, or with a named beneficiary bypasses the court entirely.
Do You Even Need to Open Probate
Probate only reaches property held in the deceased person’s name alone, with no built-in way to transfer it to someone else. The usual examples are real estate titled solely in the decedent’s name or held as tenants in common, bank accounts with no payable-on-death designation, individually owned brokerage accounts, and personal belongings like vehicles or collectibles. These assets need a court order to change hands because nothing in the title or contract moves them automatically.
A lot of property skips probate entirely. Assets inside a living trust pass under the trust’s own terms because the trust holds legal title, not the individual. Joint tenancy property transfers to the surviving co-owner by operation of law the moment the other owner dies. Life insurance proceeds and retirement accounts with named beneficiaries pay out through the financial institution under the beneficiary designation. Sorting assets into these buckets is the first thing to do, because an estate made up entirely of trust assets, joint tenancy property, and beneficiary-designated accounts may need no court case at all.
Ways to Avoid Full Probate
Small Estate Affidavit
California lets families skip full probate when the estate’s probate assets fall under a dollar threshold. For anyone who died on or after April 1, 2025, that limit is $208,850. The state adjusts the figure every three years. If the estate qualifies, heirs can collect personal property like bank accounts using a simple affidavit instead of filing a court case.
Several categories of property are left out of the calculation, which means many estates come in under the line even when the person owned substantial assets. Vehicles registered with the DMV, boats, and manufactured homes don’t count. Joint tenancy property, trust assets, and accounts with payable-on-death beneficiaries are excluded as well. Up to $5,000 of unpaid salary or unused vacation pay is also left out. Only assets that would otherwise require a court order to transfer get added to the total.
Spousal Property Petition
Surviving spouses have a separate shortcut most families don’t know about. A spousal property petition asks the court to confirm that community property and quasi-community property belong to the surviving spouse without a full administration. It works because California law already gives a surviving spouse the decedent’s half of community property when no will directs it elsewhere. The petition typically resolves in a few months rather than the 12-to-18-month standard timeline, and it avoids the statutory attorney and executor fees that are calculated on the gross estate.
What Happens When There Is No Will
When a California resident dies without a valid will, the estate still goes through court, but intestacy rules decide who inherits. Community property follows a straightforward rule: the surviving spouse receives the decedent’s half, giving them full ownership of what was earned during the marriage.
Separate property is divided based on which close relatives survive:
- Spouse and one child: each receives half of the separate property.
- Spouse and two or more children: the spouse receives one-third, and the children share the remaining two-thirds equally.
- Spouse but no children, parents, or siblings: the spouse receives everything.
If there is no surviving spouse, the estate passes first to the decedent’s children in equal shares, then to parents, then to siblings or their descendants, working outward through the family tree. When no will names an executor, the court appoints an administrator, giving priority first to the surviving spouse or domestic partner, then adult children, then grandchildren.
How to Open a Probate Case
Before filing, gather the original will if there is one, certified copies of the death certificate from the county, and a list of all potential heirs and beneficiaries with their full names and current mailing addresses.
The central document is the Petition for Probate, Judicial Council form DE-111. It asks for the decedent’s county of residence, an estimate of the estate’s personal property and real property values, and whether the petitioner wants full or limited authority under the Independent Administration of Estates Act. The proposed executor also signs form DE-147, Duties and Liabilities of Personal Representative, acknowledging their legal responsibilities. Both forms are on the California Courts website and at the local superior court clerk’s office.
File the petition in the superior court of the county where the decedent lived. The filing fee is typically $435, and the estate can reimburse the petitioner. After filing, the petitioner must publish a Notice of Petition to Administer Estate in a local newspaper. California requires three publications, with the first appearing at least 15 days before the court hearing and at least five days between the first and last publication dates. Publication costs generally run $200 to $500 depending on the newspaper and county.
What Happens After the Case Is Filed
Appointment and Letters
At the first hearing, the judge reviews the petition, admits the will to probate if there is one, and appoints the personal representative. The court then issues “Letters,” which serve as credentials to act for the estate. With Letters in hand, the representative can access bank accounts, manage real estate, and deal with creditors.
The court may require a surety bond to protect the estate from mismanagement. A bond can be waived if the will waives the requirement and the court approves, or if all beneficiaries consent in writing. Estates operating with Independent Administration authority often request waivers to reduce cost.
Inventory and Creditor Notice
Within four months of appointment, the representative must file an inventory of every estate asset with its fair market value as of the date of death. Cash and cash equivalents are valued by the representative. Everything else, including real estate, stocks, business interests, and collectibles, is appraised by a probate referee, an appraiser appointed by the State Controller’s Office and assigned by the court.
The representative must also notify all known creditors of the appointment. Creditors then have the later of four months from the date Letters were issued, or 60 days after receiving notice, to file their claims. This creditor window is one of the main reasons probate takes as long as it does, because nothing can be distributed until it closes.
How Long It Takes
Even simple California estates typically take 12 to 18 months from the initial petition to the final distribution order. Complex cases with contested claims, tax disputes, or real estate sales can stretch to several years. Roughly, expect one to three months to get the hearing and appointment, four months minimum for the creditor claim window, additional months to resolve debts and file taxes, and then a final accounting and petition for distribution that the court must approve before heirs receive anything.
Selling Real Estate During Probate
Real estate is often the slowest part of a California probate, and how it gets sold depends on whether the representative has full or limited authority under the Independent Administration of Estates Act.
With full authority, the representative can sell real property without advance court approval, as long as they send a Notice of Proposed Action to all affected heirs and beneficiaries at least 15 days before the sale. The notice must include the sale price and any broker commission. If no beneficiary objects within that window, the sale proceeds without a hearing.
With limited authority, the representative cannot sell real estate, grant options on it, or use it as loan collateral without court confirmation. Court-confirmed sales involve a public hearing where anyone can appear and outbid the accepted buyer, under a statutory overbid formula that starts at 10 percent of the first $10,000 and 5 percent of everything above that. The process protects beneficiaries from undervalued sales but can discourage buyers who don’t want to risk losing the property at a hearing.
What Probate Costs
California sets compensation for both the probate attorney and the personal representative on a sliding scale based on the estate’s gross value. Gross value means the total appraised value of probate assets before subtracting any mortgages, loans, or other debts. A home worth $800,000 with a $500,000 mortgage counts as $800,000 for fee purposes. The schedule is identical for the attorney and the representative, so each receives:
- 4 percent of the first $100,000
- 3 percent of the next $100,000
- 2 percent of the next $800,000
- 1 percent of the next $9,000,000
- 0.5 percent of the next $15,000,000
- A reasonable amount set by the court for anything above $25,000,000
On a $500,000 estate, the math works out to $13,000 for the attorney and $13,000 for the representative, a $26,000 bill in statutory fees alone. On a $1,000,000 estate, each receives $23,000, for a combined $46,000. Because fees run on gross value, families with heavily mortgaged property often find the bill surprisingly high relative to the equity they actually inherit.
Beyond statutory fees, estates pay the roughly $435 court filing fee, $200 to $500 for newspaper publication, the probate referee’s appraisal fee, bond premiums if the court requires a bond, and broker commissions on any real estate sale. When a case involves unusual complexity, such as a tax audit, a will contest, or litigation on behalf of the estate, the attorney or representative can petition the court for extraordinary compensation on top of the statutory fee.
Taxes the Representative Handles
California imposes no state estate tax and no inheritance tax. Beneficiaries owe the state nothing simply for receiving assets from a deceased person. Any estate tax exposure comes from the federal level, and the federal estate tax exemption for 2026 is $15,000,000 per person under the One Big Beautiful Bill Act signed into law on July 4, 2025. Estates below that threshold owe no federal estate tax; the tax tops out at 40 percent on amounts above it.
One of the biggest tax benefits in probate is the step-up in basis. Inherited property receives a new tax basis equal to its fair market value on the date of death, erasing all prior appreciation for capital gains purposes. California’s community property rules make this especially powerful because both halves of community property step up when the first spouse dies, not just the decedent’s half. If a couple bought a home for $200,000 and it’s worth $1.5 million at the first spouse’s death, the survivor’s new basis is $1.5 million on the entire property, and selling the next day for $1.5 million would trigger zero capital gains tax. Retirement accounts like 401(k)s and IRAs do not receive a step-up. Neither do life insurance proceeds or assets held in certain irrevocable trusts. For assets that do qualify, a professional appraisal as of the date of death is essential to lock in the stepped-up value.
The personal representative also files the decedent’s final individual income tax return, covering income from January 1 through the date of death, on the normal tax filing schedule. If the estate itself earns income after the date of death from interest, rental income, or dividends, the representative files a federal fiduciary return on Form 1041 for any year the estate’s gross income reaches $600 or more, plus a corresponding California fiduciary return.
Getting Money Out Before the Case Closes
Beneficiaries don’t always have to wait until the end. After at least two months have passed since Letters were issued, the representative can petition the court for a preliminary distribution of all or part of a beneficiary’s share. This helps in long cases where a beneficiary has immediate financial needs and the estate holds enough liquid assets to still cover remaining debts and administration costs. The court will typically want to see that the distribution won’t leave the estate unable to pay what it owes.