Most people facing this question are a few weeks past a funeral, holding a folder of bank statements and a deed, and being asked by brothers, sisters or a surviving parent whether "it has to go to court." Some have just learned they are named executor or successor trustee. Others were named nothing at all and simply live closest to the house. What they are trying to work out is whether the months ahead mean a court case or a few forms, and the answer usually sits in how each asset was titled.
The Short Answer: It Depends on How the Assets Were Held
Probate is the Superior Court process in which a personal representative collects the property of the person who died, pays debts and taxes, and distributes what remains. The personal representative is called an executor when a will names them, and an administrator when the court appoints someone because there is no will or no named executor can serve.
What triggers probate is title, not the existence of a will. A will is a set of instructions the probate court follows; it does not move anything on its own. Property passes outside probate when it carries its own instructions: a trust, a joint tenancy, a survivorship form of community property, or a named beneficiary on an account or deed.
So the first job for a family is an inventory of how things were held. The California Courts guide Inventory and estimate property value suggests looking at each record to see whether more than one owner is listed, whether anyone is named as a beneficiary, and whether the property was owned separately, jointly or as community property. The sections below take each category in turn. A broader California estate settlement guide places this question within the whole process.
Assets That Pass Outside Probate
Several common kinds of property move to the next owner without a probate case. The guide makes a distinction worth keeping: real property is land and buildings, and personal property is everything else, from cars and jewelry to stock and cash.
Revocable living trust. Property titled in the trust passes under the trust's terms, managed by the successor trustee, the person the trust names to take over. Under Probate Code section 16061.7, when a revocable trust becomes irrevocable because of a settlor's death, the successor trustee serves a notification on the beneficiaries and the deceased settlor's heirs, generally within 60 days, with a later start in situations the statute describes, such as a beneficiary the trustee learns of afterward.
Joint accounts and payable-on-death accounts. Under Probate Code section 5302, money left in a joint account belongs to the surviving party unless there is clear and convincing evidence of a different intent, and a payable-on-death account goes to the named payee once the last owner dies. That section adds that these survivorship and payee designations cannot be changed by will.
Joint tenancy and community property with right of survivorship. For real estate held in joint tenancy, the guide explains that the survivor takes the deceased owner's share. Community property held with a right of survivorship works on a similar idea for spouses and registered domestic partners. Updating the record title runs through the County Recorder's Office in the county where the property sits.
Transfer on death deeds. A revocable transfer on death deed names who receives real property at death. Probate Code section 5600 applies these rules to a transferor who dies on or after January 1, 2016, and states that this part remains in effect until January 1, 2032 unless a later statute extends that date.
Beneficiary designations on life insurance and retirement accounts are paid by the company that holds the account to the person named, under that company's claim process.
When Probate Is Required
The usual trigger is property titled solely in the decedent's name, meaning the person who died, with no surviving joint owner, no trust and no beneficiary designation, where that property is worth more than the simplified procedures allow. Real property in the decedent's name alone usually leads either to probate or to one of the simplified real-property procedures described below.
Having a will does not change this. Under Probate Code section 8200, unless a petition for probate is filed first, whoever holds the original will delivers it to the clerk of the superior court of the county in which the estate may be administered within 30 days after learning of the death, and sends a copy to the named executor or, if the executor cannot be found, to a named beneficiary. A beneficiary is a person a will, trust or account names to receive property.
Without a will, the person dies intestate, and California's intestacy rules decide who the heirs are, meaning the relatives who inherit by law. The court appoints an administrator. Probate Code section 8461 sets the order of who is entitled to that appointment: a surviving spouse or domestic partner first, then children, grandchildren, other descendants and parents, with the list continuing through more distant relatives, the public administrator, creditors and finally any other person.
The value limits for the simplified procedures change over time. The Judicial Council publishes them by date of death on DE-300 Maximum Values for Small Estate Set-Aside & Disposition of Estate Without Administration, and the California Courts page Check if you can use a simple process to transfer property says the amounts are updated every three years.
California's Simplified Procedures for Smaller Estates
These four procedures are where many families find relief: each is narrower and lighter than full probate, and each has its own rules.
Affidavit for collection or transfer of personal property. Under Probate Code section 13100, once 40 days have passed since the death, and if the gross value of the decedent's real and personal property in California is within the limit, the successor can collect money owed to the decedent, receive tangible personal property, and have securities and similar items transferred without letters from the court. Gross value here excludes property listed in Probate Code section 13050, including joint tenancy property, property in a revocable trust, property passing to a surviving spouse, account sums that belong to a surviving party or payee, registered vehicles, vessels and manufactured homes, along with certain military pay and a limited amount of wages owed. It also excludes a home included in a primary residence petition.
Petition to determine succession to the decedent's primary residence. Under Probate Code section 13151, when the decedent's primary residence in California is within its own value limit and 40 days have passed, a successor may petition the superior court for an order that they have succeeded to the home, and must deliver notice of the petition to each heir and devisee named in it within five business days of filing. The Judicial Council form is DE-310 Petition to Determine Succession to Primary Residence.
Affidavit for real property of small value. Under Probate Code section 13200, no sooner than six months after the death, a successor may file this affidavit in the superior court of the county where the decedent was domiciled, or, for someone not domiciled in California, a county where the real property is located. It must be notarized, and it attaches an inventory and appraisal by a probate referee, a certified death certificate and other items the section lists, and states that funeral expenses, last-illness expenses and unsecured debts have been paid. The DE-305 Affidavit re Real Property of Small Value notes that the person signing may be personally liable for unsecured debts up to the property's fair market value and any income from it.
Spousal or domestic partner property petition. Under Probate Code section 13500, property passing to a surviving spouse generally passes without administration. Probate Code section 13650 lets the surviving spouse petition the superior court for an order that administration is not necessary, and to confirm property that already belongs to them.
The Probate Process in California Superior Court
A full probate is a series of court-supervised steps, and for the person doing the work it can feel like taking on a part-time job with a judge as the supervisor. The case begins with a petition in the superior court of the county in which the estate may be administered.
The court then appoints the personal representative and issues letters, the document that proves their authority to banks and title companies. That person is a fiduciary: they act for the estate as a whole, not for any one heir, including themselves if they also inherit.
From there, the general sequence includes notice to creditors, with a publication requirement; an inventory and appraisal of the estate's property; payment of valid debts, expenses and any taxes owed; and distribution to beneficiaries under the will, or to heirs under the intestacy rules. If the estate includes a house that the family may sell, whether a sale needs the court's confirmation depends on the facts, and a probate attorney can say which steps apply. A family weighing that choice may find the guide to inheriting a house in California useful.
How long probate takes depends on the estate, the court's calendar and whether anyone objects. Where heirs disagree or misconduct is suspected, that contested matter is a different subject, handled by an attorney who litigates trust and probate cases. An estate settlement checklist lays out the tasks in order.
