Most people facing this question are standing in a parent's or spouse's home with a folder of statements, a deed and perhaps a will, while brothers, sisters or a stepparent ask what happens next. The answer turns less on the size of the estate than on how each thing was owned on the day of death, and that is something a family can begin to sort out with the papers already in hand.
What Probate Is and What It Does
Probate is the court process that settles a person's estate. The California Courts' Guide to property after someone dies describes it as the legal process to transfer or inherit property after the owner has died, handled by the probate division of the superior court. The rules come from the California Probate Code.
Under Probate Code section 8000, any interested person may start the case by petitioning the court to appoint a personal representative, to probate the will, or both. The personal representative is the person the court puts in charge of the estate. An executor is the personal representative named in a will. An administrator is the one the court appoints when no executor serves. A trustee, or a successor trustee who takes over a trust after the person who set it up dies, manages trust property and is a different role.
The California Courts' Overview of formal probate says the case is filed in the county where the decedent lived, or, if the decedent lived outside California, in the county where they owned property. Probate is simply a supervised process: the representative gathers property, pays debts, reports to the court and distributes what remains.
When Probate Is Required in California
Two facts together generally make probate necessary. First, the decedent held property in their name alone, with no surviving joint owner, no beneficiary designation and no trust holding it. Second, the gross value of that property, meaning its value before debts are subtracted, is more than the limit for the simplified procedures.
For deaths on or after April 1, 2025, the California Courts' simple-transfer page lists $208,850 as the maximum for collecting or transferring property by affidavit under Probate Code section 13100. These limits change every three years; the page says the next update is April 1, 2028.
A will does not change this test. It says who should receive property, but it does not transfer anything by itself. Dying without a will, called dying intestate, does not change the test either. When both facts are present, probate generally follows, and a house titled in the decedent's name alone is one of the most common reasons.
Assets That Pass Outside Probate
How an asset was titled, or whether a valid beneficiary was named, matters more than what kind of asset it is. The same type of account can pass outside court in one family and need probate in another.
- Living trust property. Property held in a revocable trust at death is managed by the successor trustee under the trust's terms, without a probate case.
- Joint tenancy property. Real or personal property held in joint tenancy generally passes to the surviving joint tenant by right of survivorship.
- Community property with right of survivorship. This form of title, available to married couples and registered domestic partners, generally lets the survivor take the whole.
- Beneficiary designations. Life insurance, retirement accounts, and payable-on-death or transfer-on-death accounts generally go to the named beneficiary.
For bank accounts, Probate Code section 5302 provides that money left in a joint account belongs to the surviving party unless there is clear and convincing evidence of a different intent, that a payable-on-death account goes to the named payee if the payee survives, and that these rights cannot be changed by will.
Probate Code section 13050 confirms that joint tenancy property, property in a trust revocable by the decedent, and certain other property are left out when figuring an estate's value for the simplified procedures. Registered vehicles and vessels, certain registered manufactured homes and mobilehomes, and some military and wage amounts are left out as well.
A successor trustee has one early duty worth knowing. Under Probate Code section 16061.7, when a revocable trust becomes irrevocable because a settlor dies, the trustee serves a notification on each beneficiary and each heir of the deceased settlor no later than 60 days after that event. The trustee serves later persons within 60 days of learning of them, and if the trustee's office was vacant, the 60 days run from when the new trustee began serving.
California's Simplified Procedures for Smaller Estates
California offers four shorter routes, each with its own conditions. The Judicial Council names them this way:
- The affidavit for collection or transfer of personal property. Under Probate Code section 13100, once 40 days have passed since the death and the value limit is met, a successor may collect money owed to the decedent and receive other personal property without letters.
- The petition to determine succession to the decedent's primary residence. For deaths on or after April 1, 2025, the Judicial Council's form DE-300 lists a $750,000 limit, applying only to the decedent's main home in California.
- The affidavit for real property of small value. For deaths on or after April 1, 2025, the same form lists $69,625 as the limit for all California real property.
- The spousal or domestic partner property petition. Under Probate Code section 13650, a surviving spouse may ask the court for an order that administration is not necessary for property passing to the surviving spouse.
Personal property and real property follow different rules, and each procedure still uses its own forms and filings. These routes involve less court oversight than full probate, but they are still legal processes.
What Happens to a House When the Owner Dies
The deed usually answers this first. A house held in the decedent's name alone generally goes through probate unless its value fits within the primary-residence petition or another simplified procedure. A house in joint tenancy generally passes to the surviving joint tenant. Community property with right of survivorship generally passes to the surviving spouse or domestic partner. A house held in a living trust passes through the successor trustee.
When the owner held the house alone and left no will, California's intestate succession rules decide who inherits, but probate is still the process that moves title. A house in probate may be sold during the case, and some sales go back to the court for confirmation; a probate attorney can say which steps apply. Families weighing what to do with an inherited house often compare keeping, renting or selling once title is clear.
Property tax is a separate question. Under Rev. & Tax. Code section 63.2, the parent-child exclusion from reassessment for transfers on or after February 16, 2021 applies only if a claim is filed with the assessor, and for a home only if it was the transferor's principal residence, becomes the transferee's principal residence within one year, and the transferee files for the homeowners' or disabled veterans' exemption within a year. The exclusion is full only if the home'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. The county assessor's office answers reassessment and exclusion questions.
Probate With a Will Versus Without One
The belief that a will avoids probate is common, and it is understandable. A will directs who receives property; the court process still applies when the triggers above are met.
When there is a will, Probate Code section 8200 generally requires whoever holds the original to deliver it to the clerk of the superior court within 30 days after learning of the death, unless a probate petition is filed earlier, and to send a copy to the named executor. The court admits the will, usually appoints the named executor, and supervises distribution under the will's terms.
When there is no will, the court appoints an administrator. Probate Code section 8461 sets the order of priority for appointment. It begins with a surviving spouse or domestic partner, then children, grandchildren, other issue, parents, and brothers and sisters, and the list continues through more distant relatives, the public administrator, creditors and any other person.
A will can be contested. Where heirs or a personal representative are in conflict, or misconduct is suspected, that is a contested matter handled by an attorney who litigates probate cases.
Who Decides Whether Probate Is Necessary
No single official decides. The answer follows from the facts under California law: what the decedent owned, how each item was titled, whether beneficiary designations were in place, and the gross value of property that does not pass another way.
A probate attorney reviews the assets and title documents and can say whether full probate, a simplified procedure or no court process fits. Banks, title companies and the DMV each set their own requirements. Some release smaller assets on an affidavit; others ask for court-issued letters.
Letters testamentary are the court's document authorizing an executor named in a will to act. Letters of administration do the same for an administrator. Once letters are first issued to a general personal representative, Probate Code section 8800 requires an inventory and appraisal within four months, though the court may allow more time that is reasonable for the case.
Next Steps for a Family Facing a Possible Probate
Gathering a few papers makes the first conversation with a probate attorney much clearer. The documents that help a probate attorney assess the estate include the death certificate, the will if there is one, any trust documents, deeds or other title documents for real property, and recent account statements showing how each account was titled and whether a beneficiary was named.
The California Courts' self-help pages publish the current simplified-procedure limits and the probate forms. An estate settlement checklist and the broader California estate settlement guide set out the later stages in order.
A probate attorney can review the specific facts and advise whether full probate, a simplified procedure or no court process applies. This page does not address disputes among heirs or how to plan an estate.
