The California Probate Process

Probate is the court-supervised process of settling a deceased person's estate — proving any will, paying debts, and distributing what's left. In California it is notably slow and expensive, which is why so much estate planning is built around avoiding it. This guide explains when probate is required, how it works step by step, how long it takes, and what it costs.

This is general information about California law, not legal advice. Consult a California-licensed probate attorney about your situation.

When probate is required

Probate is generally required when a person dies owning assets in their own name alone — not held in a trust, not passing by beneficiary designation (like retirement accounts or life insurance), and not held in joint tenancy — whose total value exceeds California's small-estate limit. For deaths on or after April 1, 2026, that limit is $239,700. Owning a home in your own name above the threshold typically forces a full probate. Estates under the limit can often use a simpler small-estate affidavit instead.

What is and isn't a probate asset

• Probate assets — property titled in the decedent's name alone with no beneficiary: a solely owned home, a bank account in one name, a brokerage account with no transfer-on-death registration, a car, personal belongings.
• Non-probate assets — property that passes outside probate by its own terms: living-trust assets, retirement accounts and life insurance with named beneficiaries, payable-on-death (POD) and transfer-on-death (TOD) accounts, joint-tenancy property, and homes covered by a recorded transfer-on-death deed.

Only the probate assets count toward the small-estate limit, and only they go through the court process described below.

The steps of a California probate

1. Petition for probate. Someone (usually the named executor) files a petition with the Superior Court in the county where the deceased lived, along with the will if there is one.
2. Notice and hearing. Notice of the petition is published in a newspaper and mailed to heirs and beneficiaries, and the court holds a hearing on the petition.
3. Appointment of the personal representative. The court appoints an executor (if named in a will) or administrator (if not) and issues "Letters" granting authority to act. The representative often requests authority under the Independent Administration of Estates Act (Prob. Code § 10400 et seq.), which lets many steps proceed without a separate court order.
4. Notice to creditors. The representative mails notice to known creditors; creditors generally have the later of four months after Letters issue or 60 days after notice to file a claim.
5. Inventory and appraisal. The representative inventories the estate's assets; a court-appointed probate referee appraises non-cash assets (Prob. Code § 8800 et seq.).
6. Pay debts, taxes, and expenses. Valid creditor claims, final income taxes, and administration costs are paid from the estate.
7. Petition for final distribution and accounting. The representative files an accounting (or a waiver of accounting) and a petition asking the court to approve distribution.
8. Distribution and closing. After the court approves, the remaining assets are distributed to the beneficiaries, receipts are filed, and the estate is closed.

What the personal representative actually does

The job is part bookkeeping, part legal procedure, and part patience. Once Letters issue, the representative becomes a fiduciary — legally obligated to act in the estate's best interest, keep estate money separate from personal money, and account for every dollar. Typical duties include securing and insuring the home and other property, opening an estate bank account, collecting income (rents, dividends, final paychecks), keeping the mortgage and utilities current, gathering and filing the inventory, evaluating creditor claims, filing the decedent's final personal income-tax return and any estate income-tax returns, and ultimately preparing the accounting. A representative who mishandles assets or self-deals can be removed and held personally liable, which is why most retain a probate attorney. Under the Independent Administration of Estates Act, many of these acts — including selling personal property and, with full authority, selling real estate — can be done by giving a Notice of Proposed Action to interested parties rather than seeking a separate court order, which speeds the case considerably.

Will contests and disputes

Probate is also where a will can be challenged. An interested person may object that the will was not executed with the formalities California requires (Prob. Code § 6110), that the decedent lacked testamentary capacity (Prob. Code § 6100.5), or that the will was the product of undue influence, fraud, duress, or mistake. California law adds teeth here: a transfer to certain disqualified people — for example, the drafter of the instrument or a care custodian — is presumed to be the product of undue influence (Prob. Code § 21380). Many wills and trusts also contain a no-contest clause, which can disinherit a beneficiary who challenges the document without probable cause (Prob. Code § 21310 et seq.). Disputes of this kind are among the most common reasons a probate stretches well beyond the typical timeline.

How long it takes

A typical California probate takes about 9 to 18 months, and complex or contested estates can take considerably longer. The mandatory creditor-claim period, the appraisal, and crowded court calendars all add time. Beneficiaries usually cannot receive their inheritance until late in the process, although the court can sometimes approve a preliminary distribution if the estate is clearly solvent.

Why it takes so long

Several built-in waiting periods stack up. The first hearing on the petition is usually set several weeks to a couple of months out, depending on the county's calendar. Once Letters issue, the four-month creditor-claim window must run before the estate can safely close. The probate referee needs time to appraise real estate and other non-cash assets. If the home must be sold, that adds a marketing-and-escrow period of its own. Only after debts, taxes, and the appraisal are resolved can the representative file the petition for final distribution, which itself requires notice and a hearing. In busy counties such as Los Angeles, an uncontested estate that "should" take a year can take eighteen months simply because of how far out hearings are scheduled.

What it costs

California is unusual in setting the attorney's and the personal representative's compensation by statute, as a percentage of the gross value of the estate (Prob. Code § 10810 and § 10800): 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9 million, and so on. Both the attorney and the representative are each entitled to this statutory fee. Because the percentage is on the gross estate, a mortgaged $1 million home is counted at the full $1 million. This fee structure is the single biggest reason Californians plan to avoid probate.

Statutory fee examples

These statutory amounts are the "ordinary" fees. The court can also award extraordinary fees for unusual work such as selling real estate, handling litigation, or running a business. On top of fees, expect court filing fees, the probate referee's fee, publication costs, and bond premiums where a bond is required.

How the fee is calculated — worked example

The percentages are applied in tiers, much like income-tax brackets, to the gross appraised value. Take a $500,000 estate — say a $500,000 home owned free and clear: 4% of the first $100,000 is $4,000; 3% of the next $100,000 is $3,000; and 2% of the remaining $300,000 is $6,000, for a total of $13,000. The attorney earns that $13,000 and the personal representative is entitled to the same $13,000, so the statutory "ordinary" compensation alone is about $26,000. For a $1,000,000 estate the math is $4,000 + $3,000 + $16,000 (2% of the next $800,000) = $23,000 each, or about $46,000 combined. Crucially, the fee is figured on the gross value, so if that $1,000,000 home carries a $600,000 mortgage, the fee is still calculated on the full $1,000,000, not on the $400,000 of equity. Add court filing fees, the probate referee's appraisal fee (set by statute at one-tenth of one percent of the value of the assets appraised), newspaper publication, and any bond premium, and the total cost of probating even a single modest home routinely exceeds what a complete living-trust plan would have cost to set up.

Ways to avoid probate

Probate can be avoided with planning: a funded revocable living trust, beneficiary designations on retirement and life-insurance accounts, payable-on-death (POD) and transfer-on-death (TOD) account registrations, joint tenancy, and a revocable transfer-on-death deed for residential real property (Prob. Code § 5600 et seq.). Each has trade-offs, so they should be coordinated as part of an overall plan.

Simplified alternatives to full probate

• Small-estate affidavit for personal property under the limit (Prob. Code § 13100) — no court case required.
• Affidavit for real property of small value (Prob. Code § 13200) and the streamlined petition to determine succession to real property (Prob. Code § 13150).
• Spousal property petition (Prob. Code § 13500) to confirm or transfer property to a surviving spouse or registered domestic partner without full probate, regardless of value.

See the California small-estate affidavit guide for details on these procedures.

What happens if there is no will

Probate still happens when someone dies without a will — it is simply administered under California's intestate succession rules (Prob. Code § 6400 et seq.) instead of under a will's terms. Here the court appoints an administrator rather than an executor, and the estate passes by a statutory formula: in broad terms, community property goes to the surviving spouse or registered domestic partner, while the decedent's separate property is divided among the spouse and the children, parents, or siblings depending on who survives (Prob. Code § 6401, § 6402). The practical consequences often surprise families: unmarried partners, stepchildren who were never adopted, and friends or charities receive nothing under intestacy, no matter how close the relationship. Because the formula is rigid and the estate still bears the full statutory probate fees, dying intestate is usually the most expensive and least flexible outcome of all — a strong reason to have at least a will, and ideally a funded trust.

Frequently asked questions

When is probate required in California?

Generally when a person dies owning assets in their own name — not in a trust, not passing by beneficiary or joint ownership — exceeding the small-estate limit ($239,700 for deaths on or after April 1, 2026). A solely owned home above the limit usually forces probate.

How long does probate take?

Commonly 9 to 18 months, and longer if the estate is complex or contested.

How much does probate cost in California?

The attorney and personal representative are each entitled to a statutory fee on the gross estate (Prob. Code § 10810) — roughly $23,000 each on a $1 million estate — plus court and appraisal costs.

How can my family avoid probate?

Mainly with a funded living trust, plus beneficiary designations, POD/TOD registrations, joint tenancy, and a transfer-on-death deed for a home. Planning ahead is far cheaper than probate.

Does a will avoid probate?

No. A will is the document the probate court follows; it does not keep the estate out of court. Only non-probate arrangements — chiefly a funded living trust — avoid probate. See California wills explained.

Who serves as executor or administrator?

If there is a will, the court appoints the executor it names (an alternate if the first cannot serve). If there is no will, California law sets a priority order — usually the surviving spouse or domestic partner, then children, then other relatives — for who may serve as administrator.

Can the personal representative be paid, and are heirs liable for the estate's debts?

The representative is entitled to the same statutory fee as the attorney, though a family member often waives it. Heirs are not personally liable for the decedent's debts out of their own pockets; debts are paid from the estate's assets before anything is distributed, and if the estate is insolvent, beneficiaries simply receive less (or nothing). Creditors who miss the claim deadline are generally barred.

Do I have to probate in California if the decedent lived in another state?

If the decedent owned real property located in California, an ancillary probate may be required here even when the main estate is administered elsewhere — another reason a living trust holding that California real estate is so useful, since trust property avoids the second proceeding entirely.

When to talk to a California probate attorney

If you have lost a loved one whose estate may need probate, an attorney can tell you quickly whether full probate is required or whether a simplified procedure fits, and can handle the filings, notices, and accounting. Counsel is especially valuable when the estate includes real estate, a business, debts that may exceed assets, out-of-state property, or any disagreement among heirs. If you are planning your own estate, an attorney can help you avoid probate altogether with a funded living trust and coordinated beneficiary designations.

Talk to a California probate attorney

For the complete picture, see our complete estate planning guide. To find a California-licensed attorney, browse the directory of attorneys licensed by the State Bar of California, across all 58 counties, by practice area and county — free, no obligation.