California probate: Process, fees, and how to avoid

The probate process often gets a bad rap. California probate, in particular, is infamous for being long, complicated, and expensive — especially if you have a larger estate. And if you or a loved one is a California resident, you’ve likely heard how much more cumbersome probate in the Golden State can be.

But what makes California probate more challenging than other states — and what can you do to avoid or simplify the process?

What is probate?

Probate is the court-supervised process of distributing your assets according to your last will and testament. The probate process can vary from state to state, with some states having longer or more complex probate processes than others.

Chief among these is California.

Probate in California: What sets it apart?

Like many states, California has its own probate code. Known as the California Probate Code, this code outlines the steps needed to complete the probate process and details rules specific to California.

California probate involves many of the same steps as other states’ probate processes, including:

1. The personal representative (the person chosen to manage the estate) submits the will to the county court and files a petition for probate. This must be done within 30 days after the deceased’s date of death.
2. The county court confirms that the will is valid.
3. The county court grants the personal representative permission to administer the estate.
4. The personal representative inventories the deceased's assets, determines their values, and pays any debts or necessary taxes.
5. The personal representative submits this information to the court, and requests approval to distribute the assets.
6. If approved, the personal representative distributes the assets to the deceased’s beneficiaries according to their will.
7. Once all debts are paid and property distributed, the personal representative petitions the court to close out the estate. This ends the probate process.

So, what's the main difference between probate in California versus in other states? California doesn't have a separate probate court. Instead, the process is handled by your local county court. Because probate is managed alongside other court cases, the wait times can be longer — extending the already lengthy probate process.

When is probate required in California?

California law requires any eligible probate assets to go through the probate process. This includes:

• Real estate property (like your house or a rental property)
• Bank accounts
• Business interests
• Investment assets (like stocks or bonds)
• Digital assets (including cryptocurrencies)
• Personal property (like heirlooms, collectible items, or furniture)

There are some assets that can skip California probate. This includes assets that have been transferred to a living trust or that have a named beneficiary.

There are also two simplified versions of California’s probate process: “small estate administration” and “spousal or domestic partner property petition.”

California’s small estate administration

If an estate in California is valued below $184,500, it may qualify for “small estate administration.” Through small estate administration, assets can bypass probate and transfer directly to the deceased’s named beneficiaries.

The personal representative must wait until 40 days have passed since the deceased’s date of death to apply for small estate administration. After this time, they can submit a written statement (known as an affidavit) to the court. In it, they’ll verify the estate’s value and request small estate administration. If approved, the personal representative can distribute assets without the time and hassle of formal probate.

Spousal or domestic partner property petition

For certain property, spouses and registered domestic partners can simplify the probate process by filing a “spousal or domestic partner property petition.” If approved by the court, assets like real estate property, bank accounts, and investment assets can largely bypass the formal probate process and transfer directly to the surviving spouse or partner.

Unlike formal probate, this simplified process can usually be completed in a single court hearing — saving months or even years of time.

How long does probate take in California?

California probate takes an average of nine months to 1.5 years. This process can last longer if your estate is larger or more complicated, or if your county’s court is facing a large caseload.

Whether or not you have a valid will can also affect how long probate takes in California. Dying without a will adds steps to the process: The local court will have to assign an estate administrator to oversee the estate and locate potential heirs. By having a will, you can help streamline the California probate process for your loved ones.

How much does probate cost in California?

Probate costs in California are determined by state law. They can vary based on the size of the estate and whether you use professional services, like hiring an attorney or accountant.

Attorney fees are typically a flat fee based on the total value of the estate. An estate attorney would typically receive between 0.5% to 4% for estates valued under $25 million. For estates over $25 million, the rate is determined by the county court.

Other California probate fees may include:

• Court costs (like filing fees or notification fees)
• Accounting services
• Probate bond fees
• Estate taxes (for estates valued over the federal estate tax exemption of $12.92 million. California doesn’t have a state-specific estate or inheritance tax.)
• Miscellaneous expenses (like notary fees or postage costs)

Compensation for the executor or personal representative is another common California probate cost. Just like attorney fees, compensation for a personal representative is outlined in the California Probate Code and based on the total value of the estate being managed.

What happens if you don’t file probate in California?

If an estate requires probate, not filing for probate can have serious consequences — especially if you’re the estate’s executor or personal representative. In this role, you have a fiduciary responsibility for the estate. This means it’s your legal duty to act in the best interest of the estate and its beneficiaries — including filing for probate.

Not filing for probate can have several consequences, including:

• Preventing estate assets from being transferred or distributed to beneficiaries.
• Extending the amount of time creditors can collect debts.
• Preventing the estate from being closed out.
• Being removed as personal representative and replaced by a court-appointed representative or conservator.

You can also face serious legal trouble if you purposefully avoid probate or neglect your duties as personal representative. Aside from being removed from the role, you could potentially face legal penalties, fines, or even criminal charges.

Probate in California without a will

Dying without a valid will is known as “dying intestate.” An intestate estate still has to go through probate, but the process often takes longer.

Without a will to guide the probate process, your assets are distributed according to a set of rules called intestate succession laws. Your county court will use these laws to decide who should receive your assets. Intestate succession laws also determine who will care for your minor children or pets and how to pay any debts you left behind.

California’s intestate succession laws can be complicated. Here’s the typical order of succession, according to the California Probate Code:

• If you’re married with no children, parents, or siblings: Your spouse will inherit your entire estate.
• If you’re not married, but have children: Your children will inherit your entire estate in equal shares. California law defines your “children” as your blood or adopted descendants. Because foster children or stepchildren aren’t legally considered your children, they usually aren’t entitled to part of your estate.
• If you’re married with no children, but have living parents: Your spouse inherits all community property and ½ of your personal property, while your parents inherit the remaining ½ of your personal property.
• If you’re married and have one child: Your spouse inherits all community property and ½ of your personal property. Your child inherits your remaining ½ of personal property.
• If you’re married and have two or more children: Your spouse inherits all community property and ⅓ of your personal property. The remaining ⅔ of your personal property is divided equally among your children.
• If you’re not married and have no children or immediate family: Your estate will be divided among any living extended family, including grandparents, aunts, uncles, and cousins.
• If the court can’t find any living relatives by blood or marriage: The state of California will inherit your property as a last resort.

You can learn more about California’s intestate succession laws by visiting the California State Legislature website.

How to avoid probate in California

If having your assets avoid the California probate process is important to you, consider the following when creating your estate plan:

• Create a living trust. Property in a trust doesn’t have to go through probate. Instead, the assets you place in your trust during your lifetime can be transferred directly to your beneficiaries according to the terms outlined in your trust documents. Learn more about why living trusts are especially valuable for people who live in California.
• Jointly-owning your property. If you own your home or other real estate property with another person and you’re both listed on the deed, the other person will assume sole ownership of the property when you pass away — no probate necessary.
• Name beneficiaries for your non-probate assets. Some assets (like life insurance policies, retirement accounts, and annuities) let you name a beneficiary to receive the asset when you pass away. This lets these assets skip the probate process and automatically pass to this person after you die.
• Set up a POD or TOD account. “Payable on death” (POD) and “transfer on death” (TOD) accounts are bank or brokerage accounts in which you name someone to receive the contents of the account when you pass away. Like other non-probate assets, these accounts automatically transfer to your beneficiary without having to go through probate.

Not every estate can bypass probate, but having a will or a trust in place can help simplify the process for your loved ones when you pass away. Talking to an estate attorney about your situation and estate planning goals can also help.

Simplify California probate by having an estate plan

The California probate process can be long, expensive, and emotionally draining, but it’s not impossible.

If you have a smaller estate, you can simplify the process by having a valid will. But if your California estate is larger or more complex, you may want to consider creating a living trust.

With a trust, you can provide a detailed roadmap for how you want your estate managed after you’re gone. Plus, your assets can skip the probate process entirely — saving your loved ones time, money, and hassle.

And as a California resident, you can create a trust today using FreeWill’s revocable living trust tool.