California Probate Law, Explained

Let’s face it. Even if you’re not grieving the loss of someone you loved, probate law can be complicated, stressful and uh . . . dreary. Right? Legal mumbo jumbo and tons of rules are a perfect recipe for adding more gloom to an unpleasant situation. And if the person who died didn’t write their will, it can be even more overwhelming.

But it doesn’t have to be. We’ll break down California probate law into understandable chunks and translate it into plain language, so you can stay awake and learn what you really need to know. Ready to get started?

The Basics of California Probate Law

Let’s start with a simple definition of probate in California: Probate is the legal process that happens after someone dies. In California, sometimes probate is necessary and sometimes it isn’t. We’ll explain what that means in a minute.

The entire California probate process typically takes between six months and 1 1/2 years, although it can take longer.¹ The smaller and simpler the dearly departed’s estate, the less time probate takes. And the bigger and more complicated the estate? You guessed it . . . the longer probate takes and the more expensive it can be.

When Is Probate Required in California?

This part is easy to understand. Here goes.

If you die without a will in California (aka intestate), sometimes probate is required and sometimes it’s not. Let’s untangle that.

First, here are the times when probate in California isn’t required, even if you die without a will.

• The estate is worth less than $166,250.
• The estate is part of a revocable living trust.
• Assets are payable-upon-death.
• Assets are community property or joint tenancy.²

If the estate doesn’t meet any of those requirements and there’s no will, then you (or your family) are headed to formal probate court.

The probate court judge in your California county will appoint an estate administrator (aka personal representative) to value your estate, pay off debts, and apply California’s intestate succession laws to determine who gets what.

In other words, if you die without a will in California and your estate requires probate, you’re leaving it up to a court-appointed stranger to make sure your assets go to your loved ones. (Don’t do this!)

However, the truth is that even if you do make your will in California, probate could be required in certain situations:

• The will's validity is contested.
• The size and complexity of the estate requires extra time.
• It’s hard to find the beneficiaries.
• Debts and/or tax claims exist.

The good news, though, is that probate in these instances is a much simpler process. There’s even a catchy name for it . . . simplified procedures.³

In California, simplified probate (aka summary or simplified probate) generally means there’s a single form you can fill out, and you’ll deal with a lot less oversight from the court. Full probate procedures, on the other hand, are much more complicated. Most people try to avoid them.

So, again, when is probate required in California? Well, sometimes it isn’t required, sometimes it’s simple, and sometimes it’s complicated. The bottom line is that if it is required, you can make probate in California much easier on your family by writing your will.

Steps for Dealing With a California Estate When Someone Dies

Regardless of whether there’s a will, if you’re dealing with an estate that has to go through probate, it’s super important to be prepared. The last thing you want is to be scrambling at the last minute to find a missing scrap of paper.

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Let’s go over the first things you should do when handling a deceased person’s estate in California.

1. Gather information and fulfill your duties as personal representative.

If you’re the personal representative—whether you were appointed by a judge or named as executor in a will—get a head start on probate in California by collecting important information and tackling your duties.

• Keep assets safe until the estate is closed. For example, if estate assets are in a house, make sure the house is locked, and store all relevant documents and valuables in a safe place inside the house.
• Find and store the will (if there is one) in a safe place.
• Order several certified copies of the death certificate—you’ll need a copy of the death certificate for many of your duties.
• Collect assets and death benefits, if possible (for example, bank account funds, life insurance proceeds, annuity benefits, Social Security death and survivor benefits, veteran’s benefits, etc.).
• Make sure the decedent’s (the person who’s passed on) safe-deposit box doesn’t contain important documents or valuables.
• Collect and sort their postal mail and email to make sure you didn’t miss anything important.
• Cancel credit cards and subscriptions.
• Take ownership of “digital assets” (for example, social media, photos and documents stored online, etc.). Note: You may need login credentials to do this.
• Notify the Franchise Tax Board that you’re managing the estate of a deceased person.
• Notify the Social Security Administration of the death if the person who died was receiving Social Security benefits.
• Prepare final income tax returns.

If you’re still on the fence about the importance of executor (or personal representative) duties, our complete guide to being an executor of an estate will help you get a deeper understanding of the role.

2. Identify the heirs and beneficiaries.

To start, let’s clarify the difference between an heir and a beneficiary.

In California, an heir is anyone, including the surviving spouse, who’s in line to receive an inheritance. A beneficiary is anyone named in a legal document to receive assets or property when someone dies.

Typically, the names of heirs and/or beneficiaries are specified in:

• The will
• The probate process in California (if there is no will)
• Estate planning documents (for example, retirement accounts, living trusts or joint tenancy arrangements)

3. Create an inventory of the decedent’s assets.

Now it’s time to create a list of the decedent’s stuff.

If they didn’t have a lot, this part will be straightforward. But if they had a large financial portfolio, you could use a spreadsheet to help you stay organized.

Okay—onto the task itself.

Here are some categories you can use for your inventory: Each asset and property you list should include a detailed description, the value, ownership portion (sole owner, partial owner, community property, etc.) and relevant dates.

Real Property

Real property is land and anything that sits permanently on that land, like a house. Real property can be real estate that’s used for personal, commercial, agricultural, industrial or special purposes.

Also, real property doesn’t have to be fully owned at the time of death—if the decedent had a minimum 10-year lease (for their business), it’s also considered real property.

Personal Property

Personal property is all property that’s not real (if you think we’re talking about pet unicorns, read the section above)—it can be tangible or intangible (aka assets).

• Tangible property is things you can touch, like furniture, electronics and jewelry.
• Intangible property is abstract. For example, let’s say the person who died owned 10,000 shares of a stock at the time of death. Intangible property like this is usually called an asset and is defined in writing, like a stock certificate.

Debts

This category in your spreadsheet (if you’re using one) should list the names of people or companies who could file a claim against the person who died for repayment of a loan or debt. For example, if they owed a $5,000 credit card balance or $15,000 in back taxes, this is where you should note that.

Probate in California gives creditors four months after someone dies to formally claim that the deceased person owed them money at the time of death.⁴

Once all bills and taxes are paid, you can ask the probate court to close the estate. Once the estate is closed, you can distribute assets to heirs and/or beneficiaries.

How Much Are Probate Attorney Fees in California?

We’re not gonna lie. California probate attorney fees are expensive.

Here’s why. California is one of only a few states that lets lawyers charge a statutory fee. What in the heck is a statutory fee? Good question.

A statutory fee is a percentage of the value of the assets that go through probate. That means that if the estate is worth $1 million, the attorney’s cut is 1–2%—that’s $10,000 to $20,000 for filing paperwork! If you’re thinking that seems extremely unkind and unfair at a time when family members are already grieving, you’re right.

Here are the current rates set by the California probate court:

• 4% of the first $100,000 of the gross value of the probate estate
• 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
• A reasonable amount (determined by the court) for any amounts higher than $25 million⁵

California lawyers don’t actually have to charge this way—they could charge a flat fee, or they could bill by the hour instead. But doing that wouldn’t bring in the same kind of profitable income for doing minimal work.

Lawyers. Grrr.

Do the Right Thing—Write Your Will

The plain truth is that if you write your will before you die—the scenario we highly recommend—probate in California is much simpler for the people you love who are already grieving your loss. To write your will, we recommend working with a RamseyTrusted online will creation company called Mama Bear Legal Forms. Mama Bear provides ready-made forms for your California last will and testament. Their forms are written by attorneys and are available at a fraction of the cost.

Create your California-specific will today!