California Probate Process FAQ

The California probate process is a court-supervised legal procedure for administering a deceased person's estate, including validating the will (if one exists), identifying and appraising assets, paying debts and taxes, and distributing remaining assets to beneficiaries or heirs. This formal process ensures that the deceased person's affairs are properly settled under judicial oversight and that all interested parties receive proper notice and opportunity to participate.

Probate is generally required when the deceased person owned assets in their name alone with a total value exceeding $184,500 (as of 2024), owned real property of any value in California regardless of how title was held, or when it is necessary to resolve title issues or disputes among heirs and beneficiaries. Assets held in joint tenancy, in trust, with named beneficiaries, or as community property with right of survivorship typically avoid probate. The threshold amount is adjusted periodically to account for inflation.

The process begins when an interested party files a Petition for Probate with the superior court in the county where the deceased person resided. The court then oversees the entire administration process through to final distribution and closing of the estate.

The California probate process typically takes between 9 to 18 months to complete from start to finish, though complex estates involving disputes, business interests, extensive real property, or tax issues may take significantly longer—sometimes two to three years or more. The timeline depends on numerous factors including estate complexity, court schedules, creditor claims, tax return preparation, and whether any contests or disputes arise.

California Probate Code Section 12200 establishes a mandatory minimum waiting period of four months from when letters are first issued to the personal representative before the estate can be closed. This waiting period is specifically designed to allow creditors adequate time to file claims against the estate. Additionally, California Probate Code Section 12201 requires that the estate remain open for at least 120 days after the first publication of notice to creditors.

The timeline includes several key phases: filing the initial petition (immediate), first hearing and issuance of letters (30-45 days after filing), inventory and appraisal filing (within 4 months), creditor claim period (4 months minimum), tax return preparation (9-12 months for federal estate tax returns when required), and petition for final distribution with final accounting (after all prior steps completed). Each phase has specific statutory deadlines that must be met, and some phases run concurrently while others must occur sequentially.

California probate costs can be substantial and include both statutory fees and additional expenses. The most significant costs are the statutory executor fees and attorney fees, which are based on the gross estate value (not the net value after debts). Under California Probate Code Section 10810, these fees are calculated on a sliding scale as follows: 4% of the first $100,000 of estate value, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9 million, 0.5% of the next $15 million, and a reasonable amount for estates exceeding $25 million as determined by the court.

Importantly, both the executor (or administrator) and the attorney are entitled to receive these statutory fees, effectively doubling the percentage amounts listed above. For example, an estate valued at $500,000 would generate statutory fees of $13,000 each for the executor and attorney, totaling $26,000 in statutory fees alone. These fees are based on the gross estate value, so even if the estate has significant debts, the fees are calculated on the total asset value before deducting liabilities.

Additional probate costs include court filing fees (approximately $435-$450 initially, with additional fees for various motions and petitions), newspaper publication costs ($200-$500), probate referee fees (0.1% of appraised assets), bond premiums if required ($100-$500+ annually depending on estate value), accounting fees for preparing the final accounting ($500-$2,000+), and various miscellaneous costs such as certified copies of documents, postage, and recording fees. Extraordinary fees may also be requested for unusual services beyond ordinary probate administration.

Under California Probate Code Section 8402, any competent adult (18 years of age or older) can serve as executor or personal representative of an estate. The person must be of sound mind and not otherwise disqualified by law. There is no requirement that the executor be a California resident, though non-residents must appoint an agent for service of process within California and may face additional bond requirements.

California Probate Code Section 8420 establishes a priority system for appointment when multiple people seek to serve. Priority is given first to persons nominated as executor in the will, then to the surviving spouse or domestic partner who is a beneficiary, followed by other beneficiaries who request appointment, and finally to creditors. If multiple persons of equal priority seek appointment, the court has discretion to choose the most suitable person based on factors such as familiarity with the estate, relationship to beneficiaries, and practical ability to serve.

Certain individuals are disqualified from serving under California Probate Code Section 8402(b), including minors, persons who are not of sound mind, convicted felons (unless the court determines service is in the estate's best interest), and persons the court finds unsuitable. Additionally, institutions such as banks and trust companies can serve as executor if specifically nominated in the will or if no individual is willing or able to serve, provided they meet the qualifications under California Financial Code provisions governing trust institutions.

California Probate Code Section 13100 provides a simplified small estate affidavit procedure that allows heirs and beneficiaries to collect a deceased person's personal property without going through formal probate when the total value of personal property does not exceed $184,500 (as of 2024, subject to adjustment for inflation). This procedure is significantly faster, less expensive, and less complicated than formal probate, making it an attractive option for qualifying estates.

To use this procedure, a successor must wait at least 40 days after the decedent's death, then present a properly completed affidavit to the person or institution holding the decedent's property (such as a bank, employer, or debtor). The affidavit must include specific information: the decedent's name and date of death, a description of the property being claimed, the successor's relationship to the decedent or basis for entitlement, a statement that the total value of the decedent's personal property in California does not exceed $184,500, a statement that no probate proceeding is pending or has been conducted, and whether the decedent owned real property in California.

It's important to note that the $184,500 limit applies only to personal property and excludes certain assets such as vehicles (which have a separate simplified procedure), multiple-party accounts with right of survivorship, assets held in trust, and assets passing by beneficiary designation. Real property requires a different procedure under California Probate Code Section 13200 (for estates under $61,500) or formal probate. The person or institution holding the property must transfer it to the successor upon receipt of the properly executed affidavit, generally within a reasonable time period.

The initial probate hearing, typically scheduled 30 to 45 days after filing the petition for probate, is a critical proceeding where the court considers the petition for probate, validates the will (if one exists), and appoints the personal representative. According to California Probate Code Section 8200, the petitioner must present several key documents and evidence at this hearing to obtain court approval and authorization to administer the estate.

Required items to present include: the original will and any codicils (if the decedent died testate), a certified copy of the death certificate, proof of proper notice to all heirs, beneficiaries, and other interested parties as required by California Probate Code Section 8110, proof of publication of the Notice of Petition to Administer Estate as required by California Probate Code Section 8120, a proposed bond amount (unless waived by the will or all beneficiaries), and the Order for Probate form for the court's signature. The petitioner or their attorney must be present to answer any questions from the court.

During the hearing, the court reviews the will's validity (confirming proper execution, testamentary capacity, and lack of undue influence or fraud), determines who the heirs and beneficiaries are, appoints the nominated executor or a suitable administrator, sets the bond amount if required, and issues Letters Testamentary (if there's a will) or Letters of Administration (if there's no will). These letters authorize the personal representative to act on behalf of the estate. If anyone objects to the petition or the will's validity, the court may set a contest hearing for a later date. Once letters are issued, the personal representative can begin administering the estate, including accessing accounts, collecting assets, and paying debts.

California has strict notice requirements for probate proceedings to ensure that all interested parties have an opportunity to participate and protect their rights. California Probate Code Section 8110 requires that notice of the petition to administer the estate be personally served or mailed to all heirs, beneficiaries, and other persons listed in the petition at least 15 days before the hearing date. This notice must include the time and place of the hearing, a description of the petition, and information about how to object.

In addition to direct notice, California Probate Code Section 8120 mandates publication of a Notice of Petition to Administer Estate in a newspaper of general circulation in the city where the decedent resided (or if there's no newspaper in that city, in the county). The notice must be published once a week for three successive weeks, with the first publication occurring at least 15 days before the hearing. The published notice serves to notify potential unknown creditors and other interested parties who might not be identified in the petition. Additionally, the notice must be posted at the courthouse as required by local rules.

Proof of service and proof of publication must be filed with the court before the hearing, as these are prerequisites for the court to proceed. Failure to provide proper notice can result in the hearing being continued, the petition being denied, or subsequent court orders being voidable. Different types of probate petitions and motions throughout the administration have varying notice requirements specified in the Probate Code, and the personal representative must carefully comply with each specific requirement. For example, California Probate Code Section 1220 generally requires 15 days' notice for most petitions, while creditor claims have special notice provisions under California Probate Code Section 9050.

California Probate Code Section 9000 et seq. establishes a comprehensive framework for handling creditor claims in probate proceedings. The personal representative has an affirmative duty to identify and notify creditors of the decedent about the probate proceeding and their right to file claims. Within four months after letters are first issued to the personal representative, they must send written notice by first-class mail to all creditors who are "known or reasonably ascertainable." A creditor is reasonably ascertainable if their identity can be determined from the decedent's records, including bills, statements, and correspondence.

Under California Probate Code Section 9100, creditors have the later of two time periods to file their claims: (1) four months from the date letters are first issued to any personal representative, or (2) 60 days from when notice was mailed to the creditor. This means that creditors who receive direct notice get at least 60 days from receipt of notice, even if the four-month period would expire sooner. Claims must be filed with the court on a mandatory Judicial Council form and must be served on the personal representative. Claims filed late are generally barred, though there are limited exceptions for certain government claims and creditors who did not receive proper notice.

Once a claim is filed, the personal representative has several options under California Probate Code Section 9250. They can allow the claim in full (by writing "approved" on the claim or paying it), reject the claim in whole or in part, or allow it in part and reject it in part. The representative has 30 days from the filing date to act on the claim, or it is deemed allowed. If a claim is rejected, the creditor has 90 days to file a lawsuit to enforce the claim, or it is barred forever. Allowed claims are paid according to a priority system established in California Probate Code Section 11420, with funeral expenses, estate administration costs, and secured debts receiving priority over general unsecured claims.

California Probate Code Section 8800 requires the personal representative to prepare and file an Inventory and Appraisal listing all assets of the decedent's estate within four months after letters are first issued. This document serves multiple critical purposes: it provides the court and beneficiaries with a complete accounting of estate assets, establishes values for calculating statutory fees, determines whether federal or state estate taxes may be due, and creates a baseline for the final accounting showing all assets that the personal representative was responsible for managing.

The Inventory and Appraisal must list all assets of the estate with their fair market values as of the date of death, not the date of appraisal. Under California Probate Code Section 8901, most estate assets must be appraised by a probate referee appointed by the court. However, certain assets can be valued by the personal representative without referee appraisal, including: cash, bank account balances, publicly traded stocks and bonds, insurance proceeds payable to the estate, and amounts owed to the decedent. The probate referee physically inspects or otherwise determines values for assets such as real property, business interests, personal property, vehicles, and other non-cash assets.

The probate referee charges a fee of one-tenth of one percent (0.1%) of the total value of assets appraised, with a minimum fee typically set by local court rules. Once the Inventory and Appraisal is complete, it must be signed by the personal representative and the probate referee, then filed with the court. California Probate Code Section 8800(b) requires that a copy be mailed to each heir and beneficiary. If assets are discovered after the initial Inventory and Appraisal is filed, a supplemental inventory must be prepared and filed. Failure to timely file the Inventory and Appraisal can result in removal of the personal representative and may constitute a breach of fiduciary duty.

To close a California probate estate and distribute assets to beneficiaries, the personal representative must file either a Petition for Final Distribution under California Probate Code Section 11640 or a combined Report of Status of Administration and Petition for Settlement. This final petition cannot be filed until several prerequisites are met: the mandatory four-month creditor claim period under California Probate Code Section 12200 has elapsed, all creditor claims have been paid or otherwise resolved, all necessary tax returns have been filed (including federal and state income tax returns for the decedent and the estate, and estate tax returns if required), and sufficient time has passed to receive any tax clearances or resolve any tax issues.

The petition for final distribution must include several key components: a detailed final accounting showing all assets received, all income earned, all disbursements made, and the remaining balance for distribution; proof that all required notices to creditors were given; evidence that all allowed creditor claims have been paid or adequate provision made for payment; documentation that all taxes have been paid or arrangements made for payment; a proposed distribution plan showing how remaining assets will be distributed to beneficiaries according to the will or intestacy laws; and requests for approval of executor and attorney fees if not previously approved.

California Probate Code Section 11640 requires that notice of the petition for final distribution be given to all beneficiaries, heirs, and other interested parties at least 15 days before the hearing. At the hearing, the court reviews the accounting, confirms that all statutory requirements have been met, approves the fees, and issues an Order for Final Distribution specifying how assets are to be distributed. After receiving the court order, the personal representative distributes the assets accordingly and obtains signed receipts from beneficiaries. Finally, the personal representative files receipts with the court showing that distribution has been completed, at which point the estate is formally closed and the letters expire. The entire process from initial filing to final distribution typically takes 9 to 18 months for uncomplicated estates.