Most people facing this question have just learned that a parent, spouse or relative owned a house, a condo or a piece of land, and that the deed may not say what happens next. Some have been named executor in a will. Others are siblings who now share an interest in a family home and are not sure who is allowed to decide anything. This page walks through what probate means for that property, from title and valuation through a possible sale, property tax and income-tax basis.
What Probate Means for Real Property in California
Probate is the court-supervised process for gathering a deceased person's assets, paying what is owed and transferring what remains to the heirs or beneficiaries. Probate Code section 7001 states the starting point: a decedent's property "is subject to administration under this code, except as otherwise provided by law."
Real property means land and what is built on it: a house, a condo, a lot. Personal property is everything else, including bank accounts, vehicles, furniture and other belongings. California treats the two differently in several places, so the distinction matters throughout this page.
A house titled only in the decedent's name, with no joint tenancy, no living trust and no other transfer that takes effect at death, generally has to pass through probate or one of the simplified court procedures. How title was held on the date of death is the fact that decides the path, and that fact varies from family to family. The deed, a recent property tax bill or a title report usually shows it. The California Estate Settlement Guide sets this step within the whole settlement process.
When Real Property Can Transfer Without Full Probate
Several ownership arrangements move real property at death without a full probate case:
- Joint tenancy with right of survivorship. The surviving joint tenant generally records an affidavit of death of joint tenant with the county recorder, and title passes outside probate.
- Community property with right of survivorship. This works in a similar way for spouses and registered domestic partners.
- A living trust. A living trust is a revocable trust the decedent created during life, and real property titled in it is managed by the successor trustee under the trust's terms, without the probate court.
- A revocable transfer on death deed. On the death, the named beneficiary generally records an affidavit with a death certificate to take title.
For a surviving spouse, Probate Code section 13650 allows a petition to the superior court asking for an order that administration of all or part of the estate "is not necessary" because the property passes to the surviving spouse. The Judicial Council calls this the spousal or domestic partner property petition.
California also has other simplified procedures, including the petition to determine succession to the decedent's primary residence and the affidavit for real property of small value. Each has a value limit set by statute and adjusted over time, and the superior court in the county where the case would be filed publishes current figures. Under Probate Code section 13050, joint tenancy property and property in a trust the decedent could revoke are excluded when those limits are measured.
The Probate Referee and Property Valuation
A probate referee is an appraiser appointed by the California State Controller to value estate assets. According to the State Controller's page on Probate Referees, candidates "must pass a state-administered test on probate procedures and appraisal principles," the Controller appoints "at least one probate referee per county," and a referee's service "is required for court resolution of an estate and also available for non-probate trust administration."
The person who files the valuation is the personal representative, the person the court appoints to run the estate: an executor if a will names one, or an administrator if there is no will or the named executor cannot serve. Probate Code section 8800 requires the personal representative to file an inventory and appraisal with the court clerk "within four months after letters are first issued to a general personal representative," unless the court allows reasonable further time. Letters are the court document that gives the personal representative authority to act. The Judicial Council's form DE-147 says the referee values the property "unless the appointment is waived by the court," while the personal representative values certain cash items.
For the family, the referee's figure does two jobs: it sets the house's value in the estate inventory, and it bears on the income-tax basis question discussed below.
Selling Real Property During Probate: Court Confirmation and IAEA
A house can be sold while it is in probate, as long as the personal representative has the right authority. The default rule is in Probate Code section 10308: except as another section provides, "all sales of real property shall be reported to and be confirmed by the court before title to the property passes to the purchaser," even if the will directs or allows the sale.
Court confirmation means the personal representative accepts an offer, then files a report of the sale and a petition asking the court to confirm it. Notice of the hearing goes to interested persons and to the purchasers named in the petition, and is posted. At that hearing, California's procedure allows other buyers to make higher offers, which the court can consider before confirming. If the personal representative does not file the report and petition within 30 days after the sale, the purchaser may file them.
The Independent Administration of Estates Act, called IAEA, lets the court grant a personal representative authority to take many actions without court supervision. That authority can be full or limited, and the court decides at the start of the case whether to grant it and which kind; under limited authority, a real property sale may still need confirmation. Under Probate Code section 10580, a personal representative with independent authority gives a notice of proposed action before taking an action when the provision granting that power requires it. A notice of proposed action is a written notice to the heirs and beneficiaries describing what the personal representative plans to do, which gives them a chance to object.
For a buyer, a probate sale simply means the seller is a personal representative acting under court or IAEA authority, not an individual owner. That difference in who signs does not make the purchase safer or riskier on its own.
Timeline: What Selling During Probate Actually Involves
How long a probate sale takes turns on several facts, and a family waiting to know when the house can be sold is usually waiting on these:
- whether the court granted independent administration authority, and which kind;
- the court's calendar, which sets when a confirmation hearing can be heard;
- whether creditors file claims against the estate;
- whether anyone contests the will, the appointment or the sale.
A court-confirmation sale adds a step that an ordinary sale does not have: the report of sale and petition are filed, the court sets a hearing, and title passes only after the court confirms. An IAEA sale can move on a timeline closer to a conventional real estate transaction once the notice period has run without objection. No honest figure applies to every estate.
Timing also connects to duty. The personal representative acts as a fiduciary, a person legally bound to act for the benefit of the estate and its beneficiaries rather than personal interest. That duty shapes decisions about when to sell, at what price and on what terms. For families still weighing whether to sell at all, the comparison in keep, rent or sell decisions sets out the tradeoffs.
Property Tax Reassessment After a Probate Transfer
Inheritance is a change in ownership for California property tax. The State Board of Equalization's Change in Ownership FAQ says a transfer "can be a gift or inheritance" and that "payment or consideration for the property is not required." A change in ownership generally leads to reassessment, meaning the county assessor sets a new taxable value based on current market value, unless an exclusion applies.
The same page sets the filing time for a change in ownership statement after a death: "within 150 days of the date of death" if there is no probate, and "at the same time that the 'inventory and appraisal' is filed" if the estate is probated. Probate Code section 8800 requires the personal representative to certify, with the inventory, that this statement has been filed in each county where the decedent owned real property, or that the decedent owned none in California.
For transfers on or after February 16, 2021, Rev. & Tax. Code section 63.2 excludes from reassessment, when a claim is filed, a transfer between parents and children, or between grandparents and grandchildren whose parents in that line have died, of two kinds of property:
- a family home, which has to be the transferor's principal residence and become the transferee's principal residence within one year, with a homeowners' or disabled veterans' exemption filed within a year of the transfer;
- a family farm.
The BOE's Proposition 19 page adds that "the transfer of a rental home between parents and children would not qualify." For a family home, the exclusion has a value limit measured from the existing taxable value; the BOE describes that limit as "biennially adjusted," and the county assessor publishes the current figure. The section's definitions of "children" include stepchildren, sons- and daughters-in-law and some foster children, subject to conditions in the text.
The claim is filed with the assessor in the county where the property sits, within three years after the transfer, or before the property is transferred to a third party, or before an eligible transferee no longer occupies the residence, whichever is earlier. A claim filed within six months after a notice of supplemental or escape assessment is also timely. If the property has not gone to a third party, a later claim can still be considered, with the exclusion applying from the lien date of the year the claim is filed. That county assessor's office is the place to confirm current amounts, claim forms and whether a particular transfer qualifies.
Stepped-Up Basis and What It Means for Inherited Property
Basis is the figure used to measure gain when property is sold. Under 26 U.S.C. § 1014(a), the basis of property acquired from a decedent is, except as that section otherwise provides, generally "the fair market value of the property at the date of the decedent's death." This is the stepped-up basis rule.
In plain terms, if heirs inherit a house and later sell it, gain for capital gains tax is generally measured from the date-of-death value, not from what the decedent originally paid. The section also allows other valuation dates in some elections, so the date-of-death figure is the general rule rather than the only one. That is why the referee's appraisal matters beyond the inventory.
Whether a particular sale produces a taxable gain depends on the date-of-death value, the sale price, selling costs and each heir's own tax situation. A CPA, an enrolled agent or a tax attorney reviews those facts. A wider look at the property choices that follow appears in what to do with an inherited house.
What the Personal Representative's Authority Over Real Property Covers
The roles here carry different powers. An executor is the person a will names to run the estate; an administrator is the person the court appoints when there is no will or the named executor cannot serve. Both become the personal representative once the court issues letters. For an administrator, Probate Code section 8461 sets an order of priority that begins with the surviving spouse or domestic partner, then children, then grandchildren, then other issue, and continues through more distant relatives, creditors and any other person.
Probate Code section 9650 gives the personal representative the right to take possession or control of estate property and to receive rents from real and personal property until distribution. The same section requires the personal representative to "pay taxes on, and take all steps reasonably necessary for the management, protection, and preservation of" the estate. It also allows real property to be left with the person presumptively entitled to it until possession becomes necessary for administration. The Judicial Council's form DE-147 adds that the personal representative should confirm the estate's assets carry appropriate insurance throughout administration. Selling, leasing or borrowing against the house runs through the confirmation or IAEA framework described above.
A trustee or successor trustee is different. A successor trustee is the person who takes over managing a living trust, and acts under the trust instrument rather than under probate court supervision. When a revocable trust becomes irrevocable because a settlor (the person who created the trust) dies, Probate Code section 16061.7 requires the successor trustee to serve a notification on beneficiaries and heirs within 60 days, or within 60 days after learning of a person entitled to it.
When heirs or beneficiaries disagree with how a personal representative or trustee is handling the property, or misconduct is suspected, that is a contested matter. It is handled by an attorney who litigates trust and probate cases.
