You may be standing in a parent's living room, or in the home you shared with a spouse, surrounded by furniture, papers, jewelry and a car in the driveway. Relatives may be asking for particular things already. Most people facing a house full of belongings have never had to sort out who may take what, or when. This page sets out that part of settling a California estate in the order it usually happens. It covers who has authority, the first weeks, which court process applies, the options for personal property, the house, and when a professional usually becomes involved.
Who Has Legal Authority Over the Belongings
Authority comes from a document or a court, and not from being the closest relative.
- Executor: the person a will names to carry it out. An executor acts for the estate after the court appoints them.
- Administrator: the person the court appoints when there is no will, or when no named executor can serve. Probate Code section 8461 sets the order of priority for that appointment. The surviving spouse or domestic partner comes first, then children, then grandchildren, then other issue, then parents. The list continues through more distant relatives, the public administrator, creditors and any other person.
- Personal representative: the general term for an executor or an administrator.
- Successor trustee: the person a trust names to manage the property held in the trust after the person who created it dies.
- Surviving joint tenant or spouse: a co-owner who may take certain property directly. Whether they can depends on how title was held.
Real property and personal property can follow different rules, and a different person may hold authority over each. Real property means land and buildings. Personal property means everything else, including cars, jewelry, furniture, accounts and stock. A trust might hold the house while the car and the furniture pass under the will.
Under Probate Code section 9650, a personal representative has the right to take possession or control of the estate property, and the duty to do so. That section allows real property and tangible personal property to stay with the person presumptively entitled to it. That person must hand it over when the personal representative asks. Until someone holds this kind of authority, no single heir has the power to distribute or sell the decedent's property alone.
The First Weeks: Securing and Inventorying Personal Property
The first job is protective. It is not dividing things up. Probate Code section 9650 requires the personal representative to take all steps reasonably necessary to manage, protect and preserve the estate. In practice that means locking the house, keeping it insured, and keeping valuables and papers in one place. Securing the home is a duty of the person with authority. It is not a right that any heir holds.
A safe deposit box in the decedent's sole name can be opened before anyone is appointed, but only for limited purposes. Under Probate Code section 331, a key holder who provides proof of death and proof of identity may open the box under the bank's supervision and make an inventory. Within those limits, that person may also remove instructions about the decedent's remains and, after photocopies are made, any wills and trust documents. Any will found must be delivered to the clerk of the superior court, and a copy must be sent to the person named in it as executor or beneficiary.
Next comes the list. The California Courts' Inventory and estimate property value guide says to list high-value items individually. For ordinary household items, it says you generally can write down the category and estimate the total value. In a probate estate, Probate Code section 8800 requires the personal representative to file an inventory and appraisal within four months after letters are first issued. Letters are the court's document confirming that person's appointment. The court may allow more time if that is reasonable in the particular case. At that stage, assets are usually valued by a probate referee, a court-appointed appraiser.
Heirlooms and sentimental items often cause more friction than anything else. The person with legal authority controls those items until the estate is settled. The relative who feels most strongly about them does not.
Which California Legal Process Applies
Many families reasonably wonder whether everything has to go through probate. Probate is the Superior Court process that appoints a personal representative and oversees how an estate is settled. Not everything goes through it. The answer for each item decides what the family can do with that item.
Some property passes outside the probate estate. Probate Code section 13050 excludes the following when the estate's size is measured for the simplified procedures:
- property held in joint tenancy
- property in a trust the decedent could revoke
- multiple-party accounts, to the extent the money belongs to a surviving party, a payable-on-death payee or a beneficiary
- registered vehicles, vessels and manufactured homes
Joint tenancy real estate generally passes to the surviving joint tenant. Trust property is handled by the successor trustee. Life insurance and retirement accounts with a named beneficiary are usually paid directly to that person.
For smaller or simpler estates, the Judicial Council describes four simplified procedures:
- the affidavit for collection or transfer of personal property
- the petition to determine succession to the decedent's primary residence
- the affidavit for real property of small value
- the spousal or domestic partner property petition
Probate Code section 13100 allows a successor to use the personal property affidavit without letters if two conditions are met. First, the gross value of the decedent's California property, apart from the excluded property, must not exceed a dollar limit. Second, 40 days must have passed since the death. The limit is adjusted periodically, and the California Courts self-help site publishes the current figure. When an estate is over the limits and the property does not pass outside probate, formal probate is usually the process that applies.
Options for Distributing or Disposing of Personal Property
Distribution follows the will, the trust or California's rules for inheritance when there is no will. Distribution here means handing property to the people entitled to it.
Debts and creditors come before distribution
Creditors of the estate have a claim on its assets before heirs receive anything. In practical terms, this is one reason belongings are usually kept together and listed rather than handed out in the first weeks: until the estate's debts are handled, the property that may be needed to pay them is still part of the estate. An informal family agreement does not replace these rules unless everyone with an interest in the estate agrees and the debts are handled. A probate attorney can explain how creditor claims affect the timing of distribution in a particular estate.
A separate list of personal items
A will may refer to a separate written list of tangible personal property. Probate Code section 6132 gives that list effect only if it meets all of these conditions:
- an unrevoked will refers to the list
- the list is dated
- the list is handwritten or signed by the person who died
- the list describes the items and the recipients with reasonable certainty
Any single item worth more than $5,000 passes under the will's remainder clause instead.
Items no one keeps
Items no one keeps can go to a number of places. Each option involves tradeoffs:
- Estate sale or liquidation: this clears many items at once. It usually brings less per item than selling each piece separately.
- Auction: this can reach collectors for valuable pieces. Results can vary.
- Consignment: the price is often higher. Payment waits until the item sells.
- Donation: this is simple. It returns no cash to the estate.
- A cash buyer for the contents: this saves time and effort. The price may be less than retail value.
- Cleanout or junk removal: this handles items with no resale or donation value.
In a probate estate, the personal representative generally may sell personal property. Some sales may need court confirmation or a notice of proposed action.
Real Property: The House and What Happens to It
The house is often the largest decision a family faces. Authority to sell it depends on how title was held. A surviving joint tenant may sell after the joint tenancy is cleared on the record. A successor trustee may sell trust property. A court-appointed personal representative may sell a house that is in the probate estate. An heir may sell once a simplified procedure has transferred the house to them. Whether a sale of the house or of personal property needs court confirmation or a notice of proposed action depends on the type of authority the seller holds, and an attorney familiar with California probate can say which applies. The broader choices are laid out on the keep, rent or sell comparison page. The selling process itself is a separate next question.
Property tax is the other major issue. A parent-child transfer on or after February 16, 2021 can be excluded from reassessment under Rev. & Tax. Code section 63.2, and so can a grandparent-grandchild transfer if all of the grandchild's parents, other than stepparents, who are the grandparents' children are deceased as of the date of the transfer. The exclusion is full only if the house's market value is less than its taxable value just before the transfer plus a limit set by law; above that, the difference is added to the taxable value. Reassessment means the county resets the taxable value. Several conditions apply:
- the house must have been the transferor's principal residence
- it must become the heir's principal residence within one year
- the heir must file for the homeowners' or disabled veterans' exemption within a year
- the heir must file a claim with the county assessor
That claim is due within three years after the transfer, or before a transfer to a third party, or before the eligible transferee stops living in the house, whichever comes first. A claim is also treated as timely if it is filed within six months after the county mails a notice of supplemental or escape assessment. If the house has not gone to a third party, a later claim can still be considered, but any exclusion applies only going forward. The county assessor's office reviews exclusion claims. Income tax and basis questions belong with a CPA, an enrolled agent or a tax attorney.
Under 26 U.S.C. § 1014(a), an heir's tax basis in inherited property is generally its fair market value at the date of death. Tax basis is the starting figure used to measure gain when the property is sold. More on the house is on the inherited house in California page.
How Long Property Can Stay in a Deceased Person's Name
No single California deadline requires all of a decedent's property to be moved out of their name. Leaving it there does cause problems over time. The county recorder's records keep showing the decedent as the owner until a deed, a court order or an affidavit is recorded. Until then, the house usually cannot be sold or refinanced. Creditor claims can make a later transfer more complicated. Property tax claims have their own filing windows, described in the house section above. The county assessor's office can confirm the timing that applies.
A probate estate carries ongoing duties once letters issue. These include the four-month inventory described earlier and the duty to keep paying taxes and protecting the property under Probate Code section 9650. Probate Code section 8800 also requires the personal representative to certify one of two things when the inventory is filed. One is that the decedent owned no California real property. The other is that a change in ownership statement has been filed with the recorder or assessor of each California county where the decedent owned property. County-by-county details for one area are on the San Diego County estate guide page.
When a Professional Usually Becomes Involved, and Which Kind
The kind of professional depends on the question. A probate or trust administration attorney is usually involved when the estate needs court supervision, when heirs disagree, or when a personal representative is unsure about their duties or personal liability. A CPA or an enrolled agent prepares income tax returns for the decedent and for the estate, and works out basis and gain when property is sold. A professional fiduciary is a person who serves as administrator or trustee when no family member is willing or able to serve.
The California Courts self-help guide explains the early steps of listing and valuing property in plain language. It also points readers to the simplified procedures and to formal probate.
A dispute among heirs, or suspected misconduct by a trustee or an executor, is a contested matter. An attorney who litigates trust and probate cases handles those matters. This page does not address contested matters or the law of any state other than California.
Finding Your Next Step
Standing in a home full of someone's things, with relatives waiting on decisions, is hard work that nobody trains for. Silver Lining Estate is an educational resource. Its Find Your Next Step questionnaire asks about your role, whether there is a will or a trust, whether a house or other real estate is involved, and what you are trying to work out about the belongings. It then points to the guides and the kinds of professional help that fit a situation like this. The Find Your Next Step questionnaire takes a few minutes and is free to use.
