Probate in California

When probate is — and isn’t — required

Only assets in the decedent’s sole name, with nothing else directing where they go, count toward probate:

• Usually subject to probate: real estate, accounts and vehicles titled in the decedent’s name alone with no beneficiary.
• Not subject to probate: assets in a living trust, property held in joint tenancy, accounts with a payable-on-death or transfer-on-death beneficiary, and retirement accounts and life insurance with a living beneficiary.
• Passing to a surviving spouse: may be confirmed through a spousal property petition instead of a full probate (Probate Code §13650).
• Under $208,850 in total: may transfer by small-estate affidavit after 40 days (§13100).
• A primary residence worth up to $750,000: for deaths on or after April 1, 2025, may pass to heirs or beneficiaries by a petition to determine succession instead of a full probate (§13151).

Opening the estate

The person named as executor in the will — or, without a will, a close family member — files a petition for probate with the court and lodges the original will. Notice of the hearing is mailed to heirs and beneficiaries and published in a local newspaper (Probate Code §8100–8124). At the hearing the court admits the will, appoints the executor or administrator, sets any bond and issues letters — the document banks and title companies rely on to recognize the personal representative’s authority.

Independent administration

Most personal representatives request authority under the Independent Administration of Estates Act (Probate Code §10400 and following), which lets them sell property, pay claims and handle many transactions without a separate court hearing for each, after giving beneficiaries a notice of proposed action for significant steps. Full authority includes selling real estate without court confirmation; limited authority does not. A will can waive bond, and heirs can consent to waive it.

Inventory, appraisal and the probate referee

Within four months after letters issue, the personal representative files an inventory and appraisal (Probate Code §8800). Cash and similar assets are valued by the representative; real estate, securities and most other assets are appraised by a probate referee appointed by the court (§8900–8920), whose commission is one-tenth of one percent of the value appraised (§8961). The inventory values also form the base for the statutory fees.

Creditors and debts

The personal representative must give notice to known creditors (Probate Code §9050). Creditors generally have until the later of four months after letters issue or 60 days after notice is mailed to file a claim (§9100). The representative allows or rejects each claim, and valid debts are paid in the order of priority the code sets. Heirs do not inherit the decedent’s debts, but debts are paid before heirs receive their shares.

Statutory fees

California sets the executor’s and the attorney’s ordinary compensation by statute, each calculated on the gross value of the estate: 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9 million, 0.5% of the next $15 million and a reasonable amount set by the court above $25 million (Probate Code §10800, §10810). On a $1,000,000 estate, that is $23,000 for the executor and $23,000 for the attorney. Extraordinary services, such as litigation or a real estate sale, can be compensated separately with court approval (§10811).

Intestate succession: when there is no will

Without a will, California law decides who inherits. A surviving spouse or registered domestic partner receives the decedent’s share of community and quasi-community property, plus a share of the separate property that ranges from all of it to one-third, depending on whether the decedent left children, parents, siblings or their descendants (Probate Code §6401). The rest of the separate property passes to children, then to parents, siblings and more distant relatives (§6402). The court appoints an administrator, usually a close relative.

Closing the estate

After the creditor period ends and taxes are handled, the personal representative files a petition for final distribution with an accounting — unless the beneficiaries waive it — and a proposed division of the remaining property. The court’s order directs the distribution; deeds are recorded, accounts are transferred and the representative files receipts to be discharged. Federal estate tax applies only above $15 million per person in 2026, but final income tax returns are still required.

How long probate takes — and avoiding it next time

Because the creditor period runs at least four months after letters issue and courts schedule hearings weeks out, even a simple probate usually takes close to a year; estates with real estate sales, tax returns or disputes take longer. Many families who go through probate decide afterward to fund a living trust so their own estate can pass without it.