Most people facing formal probate did not choose it. An adult child has just heard from a bank that an account cannot be released without court papers, a surviving spouse has found a house still titled in one name, or someone has learned they are named as executor in a will they have barely read. Other relatives are often asking what happens next, and the person in the middle is trying to understand a court process while still grieving.
This page explains what formal probate is, when California requires it, the steps the court expects, what affects the time and the cost, and the simpler paths some estates can use instead.
Formal probate is a case in the probate division of the Superior Court. The court oversees how a person's property, bills and debts are handled after death. The California Courts' Guide to property after someone dies describes probate as the legal process for transferring or inheriting property after the owner has passed away. 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 but owned property here, in the California county where that property is.
A few roles matter from the start. The decedent is the person who died. The personal representative is the person the court puts in charge of the estate. An executor is the person named in the will to take charge. An administrator is a personal representative appointed when no executor serves. An heir inherits under intestate succession, the rules that apply when there is no will or trust. A beneficiary is named in a will, a trust or an account to receive property.
The law often treats real property (land and buildings) differently from personal property (money, accounts, vehicles, belongings), so this page separates them where it matters.
Formal probate is not trust administration. Property held in a living trust is managed by a successor trustee outside the probate court. California also offers simplified procedures, covered below, for estates that qualify. For a broader introduction, see what probate is in California.
The trigger is how property was owned. Formal probate is generally needed when the decedent owned property in their name alone, with no co-owner holding a right of survivorship, no named beneficiary and no trust, and that property is too large in value for the simplified procedures.
Several kinds of property are set aside when California measures an estate for the simplified procedures. Probate Code section 13050 excludes property held in joint tenancy, property in a trust the decedent could revoke during life, and a multiple-party account to the extent the money belongs after death to a surviving party, a payable-on-death payee or a beneficiary. It also excludes certain registered vehicles, vessels and manufactured homes, and the value of some amounts owed for military service and wages, up to a capped amount. For bank accounts, Probate Code section 5302 generally gives the money in a joint account to the surviving party, and the money in a payable-on-death account to the named payee once the last account owner dies; that designation cannot be changed by will. The property that may transfer outside probate has more detail.
Real property in the decedent's name alone usually needs either formal probate or one of the simplified real property procedures.
A will does not avoid probate. The California Courts' guide says an estate may need to go through probate even if the person had a will; the will names the executor and directs who receives what, but the court still supervises. Whether a particular estate needs probate is a question of facts, explored further in whether an estate needs probate.
Where heirs are in conflict or someone suspects a personal representative of misconduct, that is a contested matter handled by an attorney who litigates trust and probate cases. This page does not cover it.
Each stage gives the family something concrete to watch for. Under Probate Code section 8000, any interested person may start a case at any time after the death by petitioning the court to set the date and place of death and to appoint a personal representative, probate the will, or both. The petition can go forward even if the will is lost or out of the petitioner's hands.
Lodging the will. Probate Code section 8200 says that, unless a petition for probate is filed first, whoever has the original will must, within 30 days of learning of the death, deliver it to the clerk of the Superior Court in the right county and deliver a copy to the named executor or, if the executor cannot be found, to a named beneficiary.
Hearing and notice. Probate Code section 8003 sets the hearing for 15 to 30 days after filing, or 30 to 45 days if the petitioner asks at filing, and the court cannot shorten the notice time. Notice goes to family and others who may inherit, and Probate Code section 8120 also requires notice published before the hearing. The court's overview says an adult who is not a party mails the notice.
Appointment and Letters. At the hearing, the judge appoints the personal representative. When no executor serves, Probate Code section 8461 sets an order of priority for who may be appointed administrator, generally subject to the other provisions of its article. The order begins with the surviving spouse or domestic partner, then children, then grandchildren, then other issue, then parents, then brothers and sisters, then issue of brothers and sisters, then grandparents. Further tiers follow, ending with the public administrator, creditors and any other person. After the appointed personal representative qualifies, which includes taking an oath, the court issues Letters, the document that gives the personal representative authority to act for the estate.
Inventory and appraisal. The court's overview says the personal representative gathers the assets, files an inventory and appraisal, and usually contacts a probate referee to value non-cash assets. More is explained under probate inventory and appraisal.
Creditors, debts and taxes. The overview says the personal representative gives formal notice to creditors, pays debts if there is money to do so, and arranges the decedent's final income tax return and any estate income tax return. Creditors have a limited period to file claims, set by the California Probate Code and measured from a specific starting point; a probate attorney can say how it applies.
Closing. The personal representative files a final report, a final account and a petition for final distribution. The overview says a final account is not needed if everyone entitled to distribution signs a written waiver or a receipt for their share. At a hearing, the judge decides whether to approve distribution.
Personal property is typically handed over once the order is made. Real property passes by the court's order, which is recorded in the county where the property sits. How probate shapes decisions about a house is the subject of how probate affects real estate.
Time in probate is shaped by the court's calendar and the estate's facts, not by how quickly a family wants to finish. The California Probate Code sets a minimum period before an estate can be closed, tied in part to the time creditors have to file claims, so even a simple estate cannot close right after appointment.
The court's overview says courts usually require a report about a year after the personal representative is appointed, and that if more time is needed to handle the assets and debts, the court gives more time.
Several facts tend to stretch the calendar:
- Disputed creditor claims can add rounds of review before debts are settled.
- Selling real property during probate adds steps, depending on the authority the personal representative holds.
- Disagreements among heirs or beneficiaries can stall distribution.
- Complex or out-of-state assets may need extra work to collect and value.
- Tax filings must be finished before the estate is closed.
For a family waiting on an inheritance, the hardest part is often that nothing is distributed until the court approves it. The personal representative generally holds the estate's property until the judge approves the final distribution. When a matter becomes contested, the timeline grows longer and harder to predict, and that subject belongs to an attorney who litigates probate cases.
Some estates move faster under the Independent Administration of Estates Act, named in Probate Code section 10400, which can give a personal representative authority to take certain actions with less court involvement. Whether it applies depends on the will, the court's order and the actions involved.
Most probate costs come out of the estate itself, though not always at first. The court's overview says many fees are paid upfront by the personal representative and reimbursed from the estate later.
Statutory fees. California sets compensation for the personal representative's ordinary services by a percentage schedule in Probate Code section 10800, based on the value of the estate accounted for. The court's overview says attorney fees are also set by law as a percentage of the estate's value, and may be higher depending on how difficult the case is. Both are usually paid at the end.
Gross value, not equity. Probate Code section 10800 says the value used for the schedule is the inventory's appraisal value, plus gains on sales and receipts, less losses on sales, "without reference to encumbrances or other obligations on estate property." In plain terms, a house with a mortgage counts at its appraised value, not at the owner's equity.
Court and administration costs. The overview lists fees to file documents, to publish notice in a newspaper, to have a probate referee value property, and other expenses of administration. Filing fees vary by county; the county's Superior Court publishes its current fee schedule, and a fee waiver is available for financial hardship, according to the overview. Recording a court order or deed for real property and paying an accountant for tax returns can add to the total.
Tax questions in an estate, including the final income tax return and any estate income tax return, are reviewed by a CPA, an enrolled agent or a tax attorney.
Formal probate is not the only path. California's simplified procedures each cover a different kind of property and set their own conditions.
Affidavit for collection or transfer of personal property. Under Probate Code section 13100, once 40 days have passed since the death and the decedent's California property, after the exclusions noted earlier, does not exceed a dollar limit adjusted periodically, the successor may collect money owed, receive belongings and have securities and similar items transferred without Letters.
Petition to determine succession to the decedent's primary residence. Under Probate Code section 13151, when the decedent's primary residence in California does not exceed its own periodically adjusted limit and 40 days have passed, a successor may petition the Superior Court for an order that they have succeeded to it, and must deliver notice to each named heir and devisee within five business days of filing.
Affidavit for real property of small value. This procedure covers real property of limited value, with its own conditions and waiting period.
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, and to confirm the spouse's own property. This option is not available to other heirs.
The California Courts' Guide to property after someone dies walks through checking whether a simple process fits and gives step-by-step instructions for the small estate affidavit; the current dollar limits come from the California Courts and the Probate Code as adjusted. The ways estates settle without full probate are explained further.
A living trust with a successor trustee settles outside the probate court. Probate Code section 16061.7 generally requires the trustee to notify beneficiaries and heirs within 60 days after a revocable trust becomes irrevocable at a settlor's death. Which path fits depends on how title was held, the date of death, the kinds of assets and their total value, and a probate attorney can say which one applies.
