How Probate Works in California: Process, Timeline, and Costs
How Probate Works in California: Process, Timeline, and Costs
California probate is governed by the California Probate Code. The state offers several paths, from a simple small estate affidavit that avoids court entirely to full probate administration under court supervision. Which path applies depends on the size of the estate, whether a will exists, and the nature of the assets. This guide covers each option with the specific statutes, fees, deadlines, and forms you need.
When Probate Is Not Required in California
Not every asset goes through probate. California law provides several ways assets can transfer directly to the surviving owner or named beneficiary, bypassing the probate court entirely.
These assets skip probate:
- Joint accounts with right of survivorship
- Community property with right of survivorship (Cal. Civ. Code Section 682.1)
- Payable-on-death (POD) bank accounts (Cal. Prob. Code Sections 5100-5407)
- Transfer-on-death (TOD) deeds for real property (Cal. Prob. Code Sections 5600-5696)
- TOD securities registrations (Cal. Prob. Code Sections 5500-5512)
- Life insurance proceeds with a named beneficiary
- Retirement accounts (401(k), IRA) with a named beneficiary
- Property held in a revocable living trust
Before assuming probate is required, inventory every asset and check how each one is titled. Many California estates have little or nothing that requires probate because accounts had beneficiary designations, TOD deeds were filed, or property was held in a trust.
You will also need to obtain certified death certificates before filing anything with the court.
Court Jurisdiction
Probate in California is handled by the Superior Court in the county where the deceased was domiciled at death (Cal. Prob. Code Section 7051). If the deceased was a non-resident who owned California property, file where the property is located (Cal. Prob. Code Section 7052). Each of California's 58 counties has one Superior Court. Use the court finder at courts.ca.gov/find-my-court.
Path 1: Small Estate Affidavit (Personal Property)
The small estate affidavit is the simplest option for personal property. It avoids formal probate entirely.
Governing statute: Cal. Prob. Code Section 13100
Eligibility requirements:
- At least 40 days have passed since the date of death
- The gross value of all the decedent's personal property in California does not exceed the threshold
- No probate proceeding is pending or has been conducted
- The threshold is $208,850 for deaths on or after April 1, 2025 (adjusted every 3 years per Cal. Prob. Code Section 890)
How it works:
The successor presents a small estate affidavit (or declaration) to the institution holding the asset, along with a certified death certificate. The affidavit states the successor's right to the property and that the estate qualifies. No court filing is required. Banks, brokerages, and other institutions accept the affidavit in place of Letters Testamentary.
Key limitations:
- The $208,850 threshold excludes assets that pass outside probate (joint tenancy, living trust, POD/TOD accounts)
- Works for personal property only, not real property
- All successors must agree
Path 2: Small Estate Petition (Real Property)
Governing statute: Cal. Prob. Code Section 13150 (primary residence) and Section 13200 (low-value real property)
Primary residence petition (Section 13150): For deaths on or after April 1, 2025, a primary residence valued at $750,000 or less qualifies for a simplified court petition filed using form DE-305.
Low-value real property affidavit (Section 13200): A separate affidavit procedure exists for real property valued at $69,625 or less (as of April 1, 2025). This does not require the property to be a primary residence.
These simplified procedures are significantly faster and cheaper than full probate.
Path 3: Spousal Property Petition
A surviving spouse or registered domestic partner may petition the court to confirm community and quasi-community property without full probate administration.
Governing statute: Cal. Prob. Code Sections 13500-13660
How it works:
File a Spousal or Domestic Partner Property Petition (form DE-221) with the Superior Court. At least 40 days must have elapsed since death. The court confirms the property belongs to the surviving spouse. No personal representative is appointed. No creditor claims period. No formal inventory.
Why this matters: For married couples in California, a large portion of the estate may be community property that the surviving spouse already owns half of. The spousal property petition avoids full probate for all community and quasi-community property.
Path 4: Full Probate
Full probate is required when the estate exceeds the small estate thresholds and no other simplified procedure applies.
Governing statute: Cal. Prob. Code Sections 8000-12591
Step 1: File the Petition
File a Petition for Probate (form DE-111) with the Superior Court in the county where the decedent resided. Filing fee: $435 (Gov. Code Section 70650(a)).
Step 2: Give Notice
Publish a Notice of Petition to Administer Estate in a newspaper of general circulation once a week for three successive weeks (Cal. Prob. Code Section 8121). Mail or personally deliver notice to all known heirs, devisees, and creditors at least 15 days before the hearing (Cal. Prob. Code Section 8110). Newspaper publication costs typically $200 to $500 depending on the county.
Step 3: Attend the Hearing
The court holds a hearing typically 30 to 45 days after filing. If no one contests, the court appoints the personal representative and issues Letters Testamentary (if there is a will) or Letters of Administration (if no will).
Step 4: Inventory and Appraisal
Within 4 months of appointment, the personal representative must file an Inventory and Appraisal (form DE-160). Non-cash assets must be appraised by a court-appointed probate referee. The probate referee fee is approximately 0.1% of appraised value (Cal. Prob. Code Section 8960).
Step 5: Notify and Pay Creditors
Creditors have 4 months from the date Letters are issued or 60 days from actual notice, whichever is later, to file claims (Cal. Prob. Code Section 9100). The personal representative reviews claims and pays valid debts.
Step 6: File Tax Returns
File the decedent's final income tax returns (federal Form 1040 and California Form 540) and any required estate or fiduciary income tax returns (Form 1041 and California Form 541). California has no state estate tax and no state inheritance tax.
Step 7: Final Accounting and Distribution
File a final report and accounting with the court, along with a petition for final distribution. All beneficiaries may waive the formal accounting by written consent (Cal. Prob. Code Sections 10950-10954).
Step 8: Close the Estate
After court approval, distribute assets to beneficiaries. File receipts with the court and request discharge of the personal representative.
Statutory Fees for Personal Representative and Attorney
California probate fees are set by statute and based on the gross estate value. Both the personal representative and the attorney are entitled to the same fee schedule (Cal. Prob. Code Section 10810):
| Estate Value | Fee Percentage |
|---|---|
| First $100,000 | 4% |
| Next $100,000 | 3% |
| Next $800,000 | 2% |
| Next $9,000,000 | 1% |
| Next $15,000,000 | 0.5% |
| Above $25,000,000 | Reasonable amount determined by court |
Example: For a $1,000,000 estate, statutory fee = $4,000 + $3,000 + $16,000 = $23,000. Both the personal representative and the attorney each receive $23,000, totaling $46,000 from the estate.
Important: Estate value for fee calculation uses the appraised value of inventory plus gains on sales, minus losses on sales. Debts and mortgages are not deducted. A home worth $800,000 with a $500,000 mortgage is valued at $800,000 for fee purposes.
Extraordinary fees may be requested for unusual services with court approval (Cal. Prob. Code Section 10811).
Filing Deadlines
| Action | Deadline | Statute |
|---|---|---|
| File will with court after death | Within 30 days of learning of death | Cal. Prob. Code Section 8200 |
| Notice to heirs/beneficiaries | At least 15 days before hearing | Cal. Prob. Code Section 8110 |
| Newspaper publication | 3 successive weeks before hearing | Cal. Prob. Code Section 8121 |
| Inventory and Appraisal | Within 4 months of appointment | Cal. Prob. Code Section 8800 |
| Creditor claims period | 4 months from Letters OR 60 days from notice | Cal. Prob. Code Section 9100 |
| Small estate affidavit | 40+ days after death | Cal. Prob. Code Section 13100 |
| Contest a will | 120 days after will is admitted | Cal. Prob. Code Section 8270 |
| Federal estate tax return (if required) | 9 months from date of death | 26 U.S.C. Section 6075 |
Who Can Serve as Personal Representative
Executor (named in the will): Any competent adult named in the decedent's will. Need not be a California resident, but non-residents may face additional bonding requirements (Cal. Prob. Code Sections 8400-8402).
Administrator (no will): Priority order under Cal. Prob. Code Section 8461:
- Surviving spouse or registered domestic partner
- Children
- Grandchildren
- Parents
- Siblings
- Grandparents
- Issue of grandparents (aunts, uncles, cousins)
- Public administrator
- Creditors
Disqualifications (Cal. Prob. Code Section 8402): Minors, persons found incapable of executing duties, and non-domiciliary corporations not authorized to act in California.
Community Property and Probate
California is a community property state (Cal. Fam. Code Section 760). This directly affects what goes through probate and what does not.
The rule: Property acquired during marriage is community property, owned equally by both spouses. The surviving spouse already owns their half. Only the deceased spouse's half of community property is part of the probate estate.
Quasi-community property: Property acquired while domiciled outside California that would have been community property if acquired in California is treated as quasi-community property (Cal. Prob. Code Section 66). At death, it is treated the same as community property.
Community property with right of survivorship (Cal. Civ. Code Section 682.1): Spouses may hold community property with right of survivorship. At death, the decedent's interest passes directly to the surviving spouse without probate.
Community property and taxes: Under IRC Section 1014(b)(6), both halves of community property receive a step-up in basis when one spouse dies, a significant tax advantage unique to community property states.
Typical Timeline
| Phase | Duration |
|---|---|
| Filing petition to hearing | 30-45 days |
| Hearing to Letters issued | Same day (if uncontested) |
| Inventory and Appraisal | 4 months from appointment |
| Creditor claims period | 4 months from Letters |
| Tax returns and payments | Varies (federal deadline 9 months) |
| Final accounting and distribution | 2-6 months |
| Total typical timeline | 9-18 months |
Complex or contested estates can take 2 to 3 years or longer.
Frequently Asked Questions
Does every California estate have to go through probate? No. Only assets titled solely in the deceased's name at death with no beneficiary designation require probate. Assets with named beneficiaries, jointly held assets, TOD deeds, and assets in a trust all transfer outside probate.
What is the small estate threshold in California? $208,850 for personal property (for deaths on or after April 1, 2025) under Cal. Prob. Code Section 13100. For real property, a primary residence valued at $750,000 or less qualifies for a simplified petition under Section 13150.
How long does probate take in California? Full probate: 9 to 18 months. Complex or contested estates: 2 to 3 years or longer. Small estate affidavits and spousal property petitions are significantly faster.
How much does probate cost in California? Filing fee: $435. Statutory fees for the personal representative and attorney are based on estate value. For a $1,000,000 estate, fees total approximately $46,000 (both the personal representative and the attorney each receive $23,000). Newspaper publication, probate referee fees, and certified copies add additional costs.
What to Do Next
If you are handling a California estate for the first time, start with the complete guide to what to do when someone dies in California for the full sequence of tasks. For details on the personal representative's responsibilities, see the executor duties guide.
Kaira organizes every step for your state — deadlines, forms, and next actions — so nothing gets missed. See how it works.
This guide was researched using California statutes current as of April 2026. Laws change. For contested estates or complex community property situations, consult a California-licensed probate attorney.
Sources: Cal. Prob. Code (California Probate Code); Cal. Fam. Code Section 760 (Community Property); Cal. Civ. Code Section 682.1 (Community Property with Right of Survivorship); Gov. Code Section 70650 (Filing Fees); courts.ca.gov; selfhelp.courts.ca.gov/probate