top of page

What is Probate and Estate in California?

Updated: Aug 23, 2020

At the end of the day, any portions of an estate that can’t be transferred more informally will likely have to be dealt with in California probate court. How the estate is dealt with will partly depend on whether the decedent died with a will or without one.

What are the different ways an estate can be transferred after someone dies?

Did You Know: There are some ways to bypass going to probate court; meaning you can sail through the process with a lot less hurdles?

Here are some common examples

  • If a particular asset (like a retirement plan, life insurance policy, or a bank account) already has a named beneficiary, that asset goes to the beneficiary (or beneficiaries, if there are more than one) without going to court.

  • If a house is owned by two or more people as joint tenants, the other owners have the right of survivorship, which means that they inherit the entire property in their name.

  • Real estate sometimes can be transferred without court with a transfer-on-death deed (also called a beneficiary deed).

  • Property in living trusts can be transferred without going to court.

There are also some simplified procedures for estates that are under $166,250.  Read Simplified Procedures to Transfer an Estate to find out different ways to transfer property that do not involve going to court.

What Is “Probate” in California?

Probate means that there is a court case that deals with:

Deciding if a will exists and is valid;

  • Figuring out who are the decedent’s heirs or beneficiaries;

  • Figuring out how much the decedent’s property is worth;

  • Taking care of the decedent’s financial responsibilities; and

  • Transferring the decedent’s property to the heirs or beneficiaries.

In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.

Simplified Procedures to Transfer an Estate You may not need to go to probate court to obtain title to property belonging to a dead person.  Figuring out if you have to go to probate court depends on many issues, like the amount of money involved, the type of property involved, and who is claiming the property. One of the ways to decide if you can use a simplified procedure to transfer property is to figure out whether any of the assets have named beneficiaries. That means that the decedent, when alive, named one or more people as beneficiaries to receive the asset when they died. Source:

We listed some examples earlier, but here are some common ones:

  • Life insurance proceeds,

  • Retirement accounts, pensions, or annuities

  • Bank accounts

  • Property in a living trust

  • Another important way is to figure out how the property is owned (the type of title ownership). For example:

  • Was the property owned in joint tenancy? If so, the surviving owner gets the entire property.

  • Was the property community property with the right of survivorship? If so, the surviving spouse or partner would likely get the entire asset.

But, it can get complicated. If the asset was community property but there was no explicit right of survivor-ship, the decedent’s spouse or partner may get the decedent’s half, but it will depend on whether there is a will and the property was divided in other ways. It may also be necessary to make sure that the property is in fact community property and was not somehow changed to separate property through an agreement or in some other way. You may need to talk to a lawyer to sort out these questions.

  • Was the bank account owned by different people? Or was it to be transferred to one person upon death?

  • Benefits like social security survivor benefits or benefits as a dependent of a deceased veteran can usually be collected without probate court.

It can be difficult to figure out whether you can use a simplified informal process to transfer property. In addition to assets that already have a designated beneficiary (like a life insurance or a bank account), estates with a value of $166,250 or less may qualify for a non-formal probate case. Also, if you were married to, or in a registered domestic partnership with, the decedent, you may be able to follow a simple process to have your property rights determined.

Generally, though, deciding if you qualify for a simple procedure may be difficult. So talk to a lawyer if you are not sure.

If The Person Who Died Left $166,250 or LESS

If you have the legal right to inherit personal property, like money in a bank account or stocks, and the estate is worth $166,250 or less, you may NOT have to go to court. There is a simplified process you can use to transfer the property to your name. The value of the property is based on what it was worth on the date of death —not on what the property is worth now.

Keep in mind, this process CANNOT be used for real property, like a house or land.  Talk to a lawyer for help to determine whether you may be able to use another simplified procedure to transfer real property.

To use the simplified process for transferring personal property: First, figure out if the value of all the decedent’s property (the estate) is $166,250 or less. To do this, Include:

  • All real and personal property.

  • All life insurance or retirement benefits that will be paid to the estate (but not any insurance or retirement benefits designated to be paid to some other person).

Do not include:

  • Cars, boats or mobile homes.

  • Real property outside of California.

  • Property held in trust, including a living trust.

  • Real or personal property that the person who died owned with someone else (joint tenancy).

  • Property (community, quasi-community, or separate) that passed directly to the surviving spouse or domestic partner.

  • Life insurance, death benefits or other assets not subject to probate that pass directly to the beneficiaries.

  • Unpaid salary or other compensation up to $16,625 owed to the person who died.

  • The debts or mortgages of the person who died. (You are not allowed to subtract the debts of the person who died.)

  • Bank accounts that are owned by multiple persons, including the person who died.

For a complete list, see California Probate Code section 13050.


If the total value of these assets is $166,250 or less and 40 days have passed since the death

You can transfer personal property by writing an affidavit. There is a special form for this that you can get from most banks and lawyers. Your court’s self-help center may also have this form or a sample you can use to guide you. To use to Affidavit process:

1. Fill out the Affidavit.

Many banks and other institutions have their own affidavit. So, check with them first and ask for one. Your court’s self-help center may also have this form. You can list all assets in one affidavit. Or you can do one affidavit for each asset.

2. Attach (to the affidavit):

A certified copy of the death certificate of the person who died. Proof that the person who died owned the property (like a bank passbook, storage receipt, stock certificate). Proof of your identity (like a driver’s license or passport) An Inventory and Appraisal (form DE-160 ) of all real property owned by the decedent in California.  You will need to get this form signed by a probate referee.  If there is no real property, then you do not need this form.

3. Have the affidavit notarized.

Legally, you are not required to have the affidavit notarized BUT many institutions will ask you to, so it is a good idea to notarize it before you try to use it to transfer the property.

If there are other people entitled to inherit the property, they MUST also sign the affidavit. This shows you all agree that the property listed on your affidavit can be transferred to you. To have the property transferred to you, give the affidavit to the person, company, or bank that has the property now.

NOTE: Make sure the case is not already in probate court. If it is, you cannot use the affidavit process unless the personal representative of the estate agrees in writing to let you do so.

4. To have the property transferred to you, give the affidavit to the person, company, or bank that has the property now.

NOTE: Make sure the case is not already in probate court. If it is, you cannot use the affidavit process unless the personal representative of the estate agrees in writing to let you do so.

If You Were Married to or Were a Registered Domestic Partner of the Person Who Died You may be able to use a simple form, called a Spousal or Domestic Partner Property Petition (form DE-221 ) to get a court order that says:

  • What your share of the community property is; and

  • What part of your deceased spouse or partner’s share of community and separate property belongs to you.

If the surviving spouse/partner is legally entitled to all of the property, a more complicated probate procedure may not be required. For example, a couple that was married for decades may only own “community property,” which belongs to the surviving spouse/partner and is confirmed by the court in the spousal property petition case.

Estates That May Need Formal Probate

Any assets that do not qualify for a simple transfer process will likely have to go through formal probate. And, if the dead person’s property is worth more than $166,250, none of the exceptions apply. You must go to court and start a probate case. Source:

To do this, you must file a Petition for Probate (form DE-111 ). This one form has different options, such as:

  • Petition for Probate of Will and for Letters Testamentary

  • Petition for Letters of Administration

Talk to a lawyer if you are not sure which option you should choose on this form.

Steps to Take If the Case Belongs in Probate Court

1. The custodian of the will (the person who has the will at the time of the person’s death) must, within 30 days of the person’s death:

Take the original will to the probate court clerk’s office within 30 days. Contact your superior court courthouse to find out where the probate court clerk’s office is located. Send a copy of the will to the executor (if the executor cannot be found, then the will can be sent to a person named in the will as a beneficiary).

If the custodian does not do these things, he or she can be sued for damages caused.

NOTE: If there is no will and a court case is needed, the court will appoint   an administrator to manage the estate during the probate process. The   person who wants to be the administrator must file a Petition for Letters of Administration (form DE-111 ). The administrator usually is the spouse,  domestic partner, or close relative of the dead person.

2. Someone, called “the petitioner,” must start a case in court by filing a Petition for Probate (form DE-111 ). The case must be filed in the county where the person who died lived (or if the person lived outside of California, in the California county where that person owned property).

The Petition for Probate has different options, like:

  • Petition for Probate of Will and for Letters Testamentary

  • Petition for Probate of Will and for Letters of Administration with Will Annexed

  • Petition for Letters of Administration

Note: To start a probate case you will need more forms than just the Petition for Probate form.  Talk to a lawyer for help with your case.

3. After a probate case is filed:

  • The probate clerk sets a hearing date.

  • The petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus the surviving family members even if there is a will and they are not named in it. Any person who is interested in the court case may file a Request for Special Notice (form DE-154 ), which means that they must receive a copy of paperwork filed by the person who is chosen to manage the estate.

  • The petitioner CANNOT mail the notice. It must be mailed by any other adult who is not a party to the case.

  • The petitioner must arrange for notice to be published in a newspaper of general circulation.

  • A court probate examiner reviews the case before the hearing to see if it was done correctly.

  • Once all the paperwork has been reviewed by the examiner and corrected, if necessary, the judge decides who to appoint to be in charge as the personal representative of the estate (also called the “administrator” or “executor”).

  • The personal representative gathers up the assets and prepares an Inventory and Appraisal (form DE-160 ) to be filed.  The personal representative usually will also need to contact a probate referee to value the nonmonetary assets. Find the contact information for a probate referee in your county . (Get more information on probate referees .)

  • The personal representative provides formal notice to creditors with the Notice of Administration to Creditors (form DE-157 ) and pays the debts.

  • A final personal income tax return is prepared for the person who died.

  • The probate court figures out who gets what property.

  • The personal representative may be required to file aReport of Sale and Petition for Order Confirming Sale of Real Property(form DE-260 ) so that sales of real property are confirmed by the court.

  • If the estate earned any money (such as interest or profit in a sale), the personal representative will have to submit a final estate tax return.

  • The personal representative reports to the court on how the estate was handled. This report is a final plan and accounting. The report is scheduled for hearing so the judge can review how the personal representative handled everything. The judge needs to be satisfied that everything has been properly taken care of.

  • After filing with the court any required final receipts to show that everyone received their property from the estate, the court discharges the personal representative from his or her duties.

Don’t Be Surprised By The Court Fees

Article dated August 20, 2020. Make sure to confirm any changes to content with California Court. Source:

13 views0 comments
bottom of page