Watch: Probate Law Explained by Attorney Amy Harrington

Short videos explaining key aspects of the California probate process.

What Is Probate Law in California?

Probate is the court-supervised legal process for administering a deceased person’s estate — paying their debts and distributing their remaining assets to heirs or beneficiaries. In California, probate proceedings are governed by the California Probate Code and are handled in the Superior Court of the county where the deceased lived at the time of death.

Not all assets go through probate. Assets held in a revocable living trust, jointly-owned assets with right of survivorship, assets with named beneficiaries (life insurance, retirement accounts, payable-on-death accounts), and certain other assets pass outside of probate. Only assets owned solely in the deceased’s name without a designated beneficiary are subject to probate.

When Is Probate Required in California?

California requires a formal probate proceeding when the total value of assets subject to probate exceeds $184,500 (as of 2023, adjusted periodically). Below this threshold, a simplified small estate affidavit procedure is available.

Probate is typically required when:

• The deceased owned real estate in their name alone (note: for decedents dying on or after April 1, 2025, a primary residence valued at $750,000 or less may qualify for simplified transfer under AB 2016 — see below)
• The deceased had bank or investment accounts without named beneficiaries or joint owners
• The deceased had significant personal property not held in a trust
• There is a will that must be formally admitted to probate
• There is no will (intestate succession) and assets require court-supervised distribution

The California Probate Process — Step by Step

Step 1 — File the Petition: The executor named in the will (or an interested party if there is no will) files a petition in the Superior Court to open probate and be appointed as personal representative. The court sets a hearing date, typically 4–8 weeks out.

Step 2 — Notice to Creditors and Heirs: Once appointed, the personal representative must publish a Notice to Creditors in a local newspaper and notify known creditors, giving them 60 days to file claims. All heirs and beneficiaries must also be formally notified.

Step 3 — Inventory and Appraisal: The personal representative inventories all probate assets and files an Inventory and Appraisal (Form DE-160) with the court. A court-appointed probate referee appraises non-cash assets at fair market value as of the date of death.

Step 4 — Pay Debts and Taxes: The personal representative pays valid creditor claims, final income taxes, and any estate taxes from estate funds. Disputed claims can be rejected and litigated.

Step 5 — Sell Real Estate (if needed): If the estate includes real property that must be sold to pay debts or distribute to heirs, the personal representative sells it — either with or without court confirmation depending on their authority under the Independent Administration of Estates Act (IAEA).

Step 6 — File a Final Accounting: The personal representative files a final accounting with the court detailing all receipts, disbursements, and proposed distributions. Beneficiaries can object to the accounting.

Step 7 — Petition for Final Distribution: After the accounting is approved, the personal representative petitions for an Order for Final Distribution, directing how estate assets are distributed to beneficiaries.

Step 8 — Close the Estate: Once distributions are made and receipts filed, the estate is formally closed.

How Long Does Probate Take in California?

A straightforward California probate typically takes 12–18 months from opening to closing. Complex estates — involving real estate in multiple counties, business interests, creditor disputes, will contests, or tax complications — can take significantly longer. The mandatory creditor notice period alone takes at least 4 months from the date of first publication.

How Much Does Probate Cost in California?

California sets statutory fees for both the personal representative and their attorney based on the gross value of the probate estate (California Probate Code § 10810):

• 4% of the first $100,000
• 3% of the next $100,000
• 2% of the next $800,000
• 1% of the next $9,000,000

Most families are relieved to learn that probate attorney fees and personal representative compensation are paid directly from the estate — not out of pocket by the family or the personal representative personally. California’s statutory fee schedule ensures these costs are predictable and court-approved, and the personal representative is entitled to the same statutory compensation as the attorney for their time and work. Engaging professional legal help for probate does not require the representative to pay anything personally.

What Is the Independent Administration of Estates Act (IAEA)?

The IAEA (California Probate Code § 10400 et seq.) allows a personal representative to administer an estate with minimal court supervision. Under full IAEA authority, the personal representative can sell real property, pay debts, and distribute assets without obtaining court approval for each action — dramatically reducing time and cost. Heirs are notified of proposed actions and have the right to object, but if no one objects, the action proceeds without a court hearing.

What Happens If There Is No Will?

When someone dies without a will (intestate), California’s intestate succession laws determine who inherits. Under California Probate Code §§ 6400–6455, assets generally pass to the closest relatives in this order: spouse or domestic partner, children, grandchildren, parents, siblings, and so on. The court appoints an administrator (rather than an executor) to manage the process.

Dying without a will also means you have no say in who manages your estate, who raises your minor children, or what happens to specific personal property — all the more reason to have at least a basic estate plan in place.

Can a Will Be Contested After Probate?

California law provides two distinct remedies for challenging a will or its admission to probate, and they should not be confused:

Contest of Will (Probate Code §§ 8250–8254): A will contest is a proceeding to prevent a will from being admitted to probate, or to challenge the validity of a will already before the court. Grounds include lack of testamentary capacity, undue influence, fraud, duress, menace, or improper execution. A will contest must generally be filed before the will is admitted, or within the time set by the court upon petition.

Revocation of Probate (Probate Code §§ 8270–8272): This is a separate and distinct remedy — a petition to revoke the probate of a will that has already been admitted. It has different procedures, different timing requirements, and different grounds than a will contest. A petition for revocation may be filed by any interested person, and the court may revoke probate if it determines the will should not have been admitted.

These are independent legal proceedings. An interested party may pursue one or both depending on the circumstances and timing, but they are governed by different statutes and require different strategies.

New Law: AB 2016 — Simplified Transfer of Primary Residence (Effective April 1, 2025)

California Assembly Bill 2016, signed into law in September 2024 and effective April 1, 2025, significantly expanded the simplified probate procedure for real property. For decedents dying on or after April 1, 2025, heirs may be able to transfer the decedent’s primary residence valued at $750,000 or less without going through full formal probate — using a Petition to Determine Succession to Real Property under California Probate Code §§ 13150–13154.

Key requirements and limitations of AB 2016:

• Primary residence only: The property must have been the decedent’s primary residence in California. Vacation homes, rental properties, and investment properties do not qualify.
• Value threshold: The gross fair market value of the property must not exceed $750,000 (as appraised by a probate referee as of the date of death). Note that gross value — not equity after the mortgage — is what counts.
• Court hearing required: Unlike a simple small estate affidavit, this procedure requires filing a petition in the Superior Court, a 40-day waiting period after death, formal notice to all heirs and beneficiaries, and a court hearing before a judge issues an order transferring the property.
• Date of death matters: This threshold applies to decedents who die on or after April 1, 2025, through March 31, 2028 (after which the threshold adjusts).
• Separate from personal property: The small estate affidavit threshold for personal property (bank accounts, vehicles, investments) was separately updated to $208,850 for deaths on or after April 1, 2025 (California Probate Code § 13100).

AB 2016 is a meaningful improvement for California families whose primary home falls in the $184,500–$750,000 range and was not held in a trust. However, it still requires court involvement, a probate referee appraisal, and formal notice to all heirs — making a revocable living trust the superior choice for most homeowners seeking to avoid probate entirely.

Who Pays the Attorney and Personal Representative in Probate?

One of the most common concerns for families navigating probate is cost. The good news: attorney fees, personal representative compensation, and other professional fees in a California probate are paid from the estate — not personally by the executor, administrator, or family members.

California Probate Code § 10810 sets a statutory fee schedule for both the attorney and the personal representative, based on the gross value of the probate estate. Both are entitled to the same statutory compensation. This means the personal representative receives reasonable payment for their time and effort — and does not need to pay the attorney out of pocket. Additional “extraordinary” compensation may be approved by the court for complex matters such as tax disputes, litigation, or sale of real property.

Court filing fees, probate referee appraisal fees, and publication costs are also estate expenses. Families are generally not asked to advance these costs personally, though practices vary. An experienced probate attorney can walk you through what to expect before any engagement begins.

Avoiding Probate in California

The most effective way to avoid probate in California is a revocable living trust. Assets titled in the trust avoid probate entirely and can be distributed to beneficiaries immediately after death without court involvement. A trust also provides for management of assets during incapacity, avoiding the need for a court conservatorship.

Other tools that avoid probate include joint tenancy with right of survivorship, payable-on-death bank account designations, and transfer-on-death deeds for real estate.

Frequently Asked Questions — California Probate

Q: Does a will avoid probate in California?
No. A will must be submitted to probate court to be given legal effect. A will tells the court how you want your assets distributed, but it does not avoid the probate process. Only assets held in a trust or passing by beneficiary designation avoid probate.

Q: What assets go through probate in California?
Assets owned solely in the deceased’s name without a beneficiary designation or joint owner — such as individually-owned real estate, bank accounts without payable-on-death designations, and personal property over the $184,500 threshold — go through probate. Trusts, joint tenancy property, life insurance, and retirement accounts with named beneficiaries do not.

Q: How do I avoid probate in California?
The most reliable method is a revocable living trust, into which you transfer ownership of your assets during your lifetime. At death, the successor trustee distributes trust assets without court involvement. You should also ensure all financial accounts and insurance policies have named beneficiaries.

Q: Can I handle probate without an attorney in California?
Technically yes, but California probate is complex — involving strict deadlines, court filings, creditor notices, appraisals, and accountings. Errors can result in personal liability for the personal representative. Most families work with an experienced probate attorney to navigate the process efficiently.

Q: What is a probate referee in California?
A probate referee in California is appointed by the California State Controller (not the court) under Probate Code § 400, and assigned to cases on a rotating basis by the probate court. To qualify, candidates must pass a state-administered written examination on probate procedures and appraisal principles, and meet at least one of the following: be a licensed California attorney, have at least three years of experience as a certified public accountant, or have substantial property appraisal or valuation experience. Probate referees are not required to be licensed appraisers. They complete 15 hours of continuing education annually and are compensated by the estate at a statutory rate (ordinarily 1/10 of 1% of the appraised value). This role is distinct from a partition referee, who is a court-appointed attorney overseeing the sale of co-owned real property under CCP § 873.010.

Trust Administration After Probate

When a decedent’s estate includes a revocable living trust, the successor trustee takes over trust administration after probate — or in lieu of probate entirely. If the named successor trustee cannot or will not serve, a professional trustee can be appointed. Amy Harrington serves as professional trustee and successor trustee throughout California, handling trust administrations that arise from probate estates and independently. See Trustee Services for more information.

Contact Harrington Law P.C. — Bay Area Probate Attorneys

Harrington Law P.C. handles all aspects of California probate administration for families throughout California, with offices in San Francisco and Sonoma. Amy Harrington has been managing probate and trust administrations since 2005, serving as both attorney and personal representative in complex estates.

San Francisco: One Embarcadero Center, Suite 1200, San Francisco, CA 94111
Sonoma: 846 Broadway, Sonoma, CA 95476
Phone: 415-558-7700 | Email: admin@amyharringtonlaw.com