Not every estate in California has to go through probate. Some assets transfer automatically to the next owner, and smaller estates can use simplified procedures that skip the court process entirely. The question is whether your specific situation triggers a full probate proceeding or qualifies for an exemption.
Schedule a free consultation with Von Rock Law to find out if your family’s estate will require probate and what steps to take now.
This guide explains the California rules that determine when probate is required, when it is not, and what you can do today to keep your family out of probate court.
What Is Probate?
Probate is the court-supervised process of settling a deceased person’s estate. A California Superior Court judge oversees the identification of assets, payment of debts and taxes, and distribution of remaining property to heirs or beneficiaries.
The process is governed by the California Probate Code and typically takes 12 to 18 months, though contested estates can drag on for two years or longer. The court charges filing fees, and California law sets statutory fees for attorneys and personal representatives based on the estate’s gross value.
When Probate Is Required in California
California law requires probate in two main situations:
1. The Deceased Owned Assets Worth More Than $184,500 Without a Trust
If the total value of a deceased person’s probate assets (assets that do not have a named beneficiary, joint owner, or trust) exceeds $184,500, a full probate proceeding is required. This threshold applies to the gross value, not the net value after debts.
In California, where the median home price exceeds $800,000 statewide and $1.5 million in the Bay Area, most homeowners exceed this threshold with real estate alone.
Important: This threshold was $166,250 before April 1, 2022, when it was adjusted for inflation under California Probate Code section 13100. It may be adjusted again in the future.
2. The Deceased Owned Real Property Without a Trust or Joint Tenancy
Real estate held in the deceased person’s name alone (not in a trust and not in joint tenancy) almost always requires probate, regardless of the property’s value. There is a limited exception for real property valued under $61,500, but this rarely applies in California given property values.
When Probate Is NOT Required in California
Several categories of assets and estate structures bypass probate entirely. Understanding these exemptions is the key to estate planning that protects your family from unnecessary court proceedings.
Assets in a Living Trust
Property held in a revocable living trust does not go through probate. When the trust creator dies, the successor trustee distributes assets according to the trust’s instructions, without court involvement. This is the most common and effective way to avoid probate in California.
Jointly Owned Property
Assets held in joint tenancy with right of survivorship pass automatically to the surviving owner. This includes real estate, bank accounts, and investment accounts held jointly. In California, married couples can also hold property as community property with right of survivorship, which has the added benefit of a full stepped-up tax basis.
Assets With Named Beneficiaries
Life insurance policies, retirement accounts (401(k), IRA), and payable-on-death (POD) or transfer-on-death (TOD) accounts pass directly to the named beneficiary. They do not go through probate, regardless of their value.
Small Estates Under $184,500
If the total value of a deceased person’s probate assets (excluding assets in trusts, joint accounts, and accounts with named beneficiaries) is $184,500 or less, the heirs can use a small estate affidavit under California Probate Code section 13100. This is a simple sworn statement filed 40 days after death that allows transfer of assets without a court proceeding.
For a deeper look at how small estate procedures work in California, see our guide on whether a small estate can avoid probate.
Spousal Property Petition
When a married person dies, the surviving spouse can file a spousal property petition (California Probate Code section 13650) to confirm ownership of community property and quasi-community property without a full probate. This is a simplified court procedure that is faster and less expensive than probate.
What Counts as a “Probate Asset”?
Not everything a person owns at death is a probate asset. Understanding the distinction helps you determine whether an estate meets the $184,500 threshold.
| Probate Assets (require probate if over $184,500) | Non-Probate Assets (transfer automatically) |
|---|---|
| Real estate in the deceased’s name alone | Property in a living trust |
| Bank accounts in the deceased’s name alone | Joint tenancy property |
| Vehicles titled in the deceased’s name | Life insurance with a named beneficiary |
| Personal property (furniture, jewelry, etc.) | Retirement accounts with named beneficiaries |
| Business interests not in a trust | POD/TOD bank and brokerage accounts |
| Investment accounts without TOD designation | Community property with right of survivorship |
How Much Does Probate Cost in California?
California is one of the most expensive states for probate because attorney and personal representative fees are set by statute based on the gross estate value (not net, after debts). Under California Probate Code section 10810, statutory fees are:
- 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
Both the attorney and the personal representative each receive these fees. For a $1 million estate, that comes to $23,000 for the attorney plus $23,000 for the personal representative, totaling $46,000 in statutory fees alone.
On top of statutory fees, courts may approve “extraordinary fees” for complex matters (tax disputes, property sales, litigation), and there are court filing fees, publication costs, and appraisal fees.
Here is how those fees add up for common Bay Area estate values:
| Estate Value | Attorney Fee | Personal Rep Fee | Total Statutory Fees |
|---|---|---|---|
| $500,000 | $13,000 | $13,000 | $26,000 |
| $1,000,000 | $23,000 | $23,000 | $46,000 |
| $1,500,000 | $33,000 | $33,000 | $66,000 |
| $2,000,000 | $33,000 | $33,000 | $66,000 |
These fees are based on the gross value of the estate, not the equity. If a home is worth $1.5 million with a $500,000 mortgage, fees are still calculated on $1.5 million.
Learn more about how trusts can reduce these costs in our guide on how trusts reduce taxes.
Common Complications That Extend Probate
Several factors can push probate well beyond the typical 12-to-18-month timeline:
- Will contests: A beneficiary or heir challenges the validity of the will, claiming undue influence, lack of capacity, or fraud. These disputes require hearings and sometimes trials.
- Missing heirs: If the court cannot locate all beneficiaries, the process stalls until a diligent search is completed or the court authorizes distribution.
- Real estate sales: Selling property during probate requires court approval (unless the executor has independent administration authority), which adds hearings and potential overbidding.
- Creditor disputes: If the executor rejects a creditor’s claim, the creditor can sue the estate, adding months or years of litigation.
- Tax issues: Estates that owe federal estate taxes or have complicated income tax situations may require additional accounting and IRS clearance before distribution.
- Out-of-state property: If the deceased owned real estate in another state, a separate “ancillary probate” proceeding is required in that state.
Every one of these complications increases attorney fees beyond the statutory minimums. A living trust avoids most of them entirely.
Not sure if your estate plan will avoid probate? Book a free consultation and review your situation with a Von Rock Law attorney.
Does Having a Will Avoid Probate?
No. This is one of the most common misconceptions in estate planning. A will does not avoid probate. In fact, a will requires probate to be validated. The court must “admit” the will to probate, confirm it is valid, and supervise the executor as they carry out its instructions.
A will tells the court how you want your assets distributed. A living trust transfers assets outside the court process entirely. Both are important, but only the trust avoids probate.
Talk to a Von Rock Law attorney about setting up a living trust that keeps your family out of probate court.
How to Avoid Probate in California
If you want to keep your estate out of probate, these are the most effective strategies:
- Create a revocable living trust. Transfer your real estate, bank accounts, and investments into the trust. This is the single most effective probate avoidance tool for California homeowners.
- Hold property in joint tenancy. Joint tenancy with right of survivorship lets property pass directly to the surviving owner. Married couples can also use community property with right of survivorship for the added tax benefit of a full stepped-up basis.
- Name beneficiaries on financial accounts. Add TOD (transfer on death) or POD (payable on death) designations to bank accounts, brokerage accounts, and retirement accounts.
- Keep beneficiary designations current. Outdated beneficiary designations on life insurance and retirement accounts can send assets to ex-spouses or deceased relatives, creating probate complications.
- Use a small estate affidavit when possible. If the estate qualifies (under $184,500 in probate assets), the heirs can use a simple affidavit instead of a court proceeding.
The most reliable approach is a combination of all five: a living trust as the foundation, with beneficiary designations and joint ownership as backup for accounts that have not yet been transferred into the trust.
What Happens During the California Probate Process?
If probate is required, here is what to expect:
- File a petition (weeks 1-4): The executor files a petition with the California Superior Court in the county where the deceased lived. Court filing fees are typically $435 to $500.
- Notify heirs and creditors (weeks 4-8): The executor sends notices to all heirs and beneficiaries and publishes a notice to creditors in a local newspaper. Creditors have four months to file claims.
- Inventory and appraise assets (months 2-4): The executor files an inventory of the estate’s assets. A court-appointed probate referee appraises non-cash assets.
- Pay debts and taxes (months 4-8): Valid creditor claims are paid from estate assets. The executor files any required tax returns.
- Distribute assets (months 8-18): After all debts are paid and the four-month creditor period has passed, the executor petitions the court for final distribution. The judge reviews and approves the plan.
- Close the estate (months 12-18+): The executor files a final accounting, and the court closes the case.
Some estates qualify for independent administration, which reduces the number of court appearances and speeds up the process. But even independent administration takes months and costs thousands in fees.
Frequently Asked Questions
Is probate required if there is a will in California?
Yes. A will must go through probate to be validated by the court. Having a will tells the court how to distribute your assets, but it does not let you skip the court process. Only a living trust avoids probate.
What is the threshold for probate in California?
The current probate threshold in California is $184,500. If the deceased’s probate assets (assets not in a trust, not jointly held, and without named beneficiaries) exceed this amount, a full probate proceeding is required.
How long does probate take in California?
Most California probate cases take 12 to 18 months. Contested estates, estates with real estate sales, or cases with creditor disputes can take two years or longer. The four-month creditor claim period is a mandatory minimum that cannot be shortened.
Can you sell a house during probate in California?
Yes, but the sale requires court approval unless the executor has independent administration authority. Court-supervised sales involve a hearing, potential overbidding, and delays. Independent administration allows sales without court confirmation but still requires notice to beneficiaries.
What happens if you do not probate a will in California?
If you do not probate a will, the assets remain titled in the deceased person’s name. You cannot sell real estate, access bank accounts, or transfer property. Eventually, the estate must go through probate or use small estate procedures (if eligible) to transfer title. There is no deadline to file for probate in California, but delays create practical problems for heirs who need access to assets.
Protect Your Family From Probate
Probate is expensive, slow, and entirely avoidable for most California families. The cost of setting up a living trust is a fraction of what probate would cost your heirs, and the process takes weeks instead of over a year.
At Von Rock Law, we help San Francisco Bay Area families build estate plans that skip probate and protect their assets. Our flat-fee Custom Estate Plan starts at $6,000 and includes everything your family needs to avoid the probate process.
Schedule your free consultation today and find out how to keep your family out of probate court.
This blog is made available by Von Rock Law, PC for informational purposes only and is not intended to provide legal advice. The information contained herein may not reflect the most current legal developments and may not apply to your specific circumstances. Viewing this website, reading this blog, or communicating with our firm through this site does not create an attorney-client relationship. You should not act upon any information contained in this blog without seeking professional counsel from an attorney licensed in your jurisdiction. Unless otherwise expressly stated, our attorneys are licensed to practice law only in the State of California. Prior results do not guarantee a similar outcome.
