What Probate Is and Why It Exists
When a person dies, someone has to be legally authorized to collect their assets, pay their debts, and distribute what remains to their heirs or beneficiaries. Probate is the court process that provides that authorization.
The California Superior Court oversees probate proceedings under the California Probate Code. The court appoints a personal representative — called an executor if named in a will, or an administrator if there is no will — to manage the estate. The personal representative has a legal duty to act in the interest of the estate and its beneficiaries.
When Probate Is Required in California
Not every estate requires probate. California requires probate when the deceased person owned assets titled solely in their name with a gross value exceeding $184,500 — the current threshold under California Probate Code § 13100 as periodically adjusted for inflation.
Assets that typically require probate include real property titled solely in the deceased person’s name, bank accounts without a payable-on-death beneficiary designation, investment accounts without a transfer-on-death designation, and personal property above the threshold.
What Avoids Probate
Many assets pass outside of probate entirely. These include:
- Assets held in a living trust.
- Property held in joint tenancy with right of survivorship.
- Accounts with designated beneficiaries — life insurance, retirement accounts, payable-on-death bank accounts, transfer-on-death investment accounts.
- Community property with right of survivorship between spouses.
The primary reason most California estate plans include a revocable living trust is to avoid probate entirely. Assets transferred into the trust before death pass directly to beneficiaries without court involvement.
How the California Probate Process Works
Probate in California follows a structured process under the Probate Code. The general steps are:
- Filing a petition with the superior court in the county where the deceased lived.
- The court admits the will to probate (if one exists) and appoints a personal representative.
- The personal representative publishes notice to creditors — creditors have four months to file claims against the estate.
- The personal representative inventories and appraises all estate assets. A court-appointed probate referee appraises non-cash assets.
- Creditor claims are paid from estate assets.
- The personal representative files an accounting with the court showing all income, expenses, and proposed distributions.
- The court approves the accounting and authorizes final distribution.
- Assets are distributed to beneficiaries and the estate is closed.
How Long Does California Probate Take
California probate is not fast. A straightforward estate with no disputes typically takes 12 to 18 months from filing to close. Contested estates — where heirs dispute the will, challenge the personal representative, or fight over asset values — can take years.
The mandatory four-month creditor claim period alone means no estate can close in less than four months regardless of how simple it is.
Simplified Procedures for Smaller Estates
California offers simplified probate procedures for estates below certain thresholds.
Small estate affidavit — for estates with personal property under $184,500, heirs can collect assets using a simple affidavit under Probate Code § 13100 without any court involvement. This procedure is available 40 days after death.
Spousal property petition — a surviving spouse can use a simplified court petition under Probate Code § 13500 to confirm community property and certain separate property without full probate.
Summary administration — available for estates where the net value does not exceed the statutory small estate threshold.
Dying Without a Will — Intestate Succession
If a person dies without a will — called dying intestate — California’s intestate succession laws under Probate Code §§ 6400–6455 determine who inherits. Generally, assets pass to a surviving spouse, then to children, then to other relatives in a defined order. The state takes the estate only if no eligible heirs exist.
Dying without a will does not avoid probate — it just means the court follows the statutory distribution rules rather than the deceased’s wishes.
Frequently Asked Questions
Do I need a lawyer for California probate?
You can represent yourself as a personal representative in California probate — appearing in pro per. However, probate involves complex accounting requirements, court filings, creditor notices, and tax considerations. Most personal representatives retain a probate attorney. The statutory fee is the same whether you use an attorney or not — the attorney fee comes from the estate, not your pocket.
What happens if someone dies with only a will and no trust?
The will must be admitted to probate. A will does not avoid probate — it only directs how assets are distributed through the probate process. A living trust avoids probate entirely because the assets are no longer in the deceased person’s name at death.
Can probate be avoided after someone has already died?
Sometimes. If assets are below the small estate threshold, simplified procedures apply. If a surviving spouse is involved, the spousal property petition may apply. For real property, a Heggstad petition may allow a court to confirm that certain assets belong in an existing trust even if they were never formally transferred. Options depend heavily on the specific facts.
What is a probate referee?
A probate referee is a state-appointed appraiser who values non-cash estate assets — real property, stocks, business interests, personal property — for probate purposes. The probate referee’s fee is set by statute at 0.1 percent of the appraised value of assets they appraise.
Does this apply outside California?
Probate law varies significantly by state. California’s Probate Code, fee schedule, and procedures are California-specific. If the deceased owned property in multiple states, ancillary probate proceedings may be required in each state where real property is located.