What Is Probate in California?
Probate is the court-supervised legal process of settling a deceased person's estate. When someone dies owning assets in their name alone — without a living trust, joint tenancy, or beneficiary designation — those assets must go through probate before they can be transferred to heirs.
The process involves filing a petition with the Superior Court, publishing a notice to creditors, inventorying and appraising all assets, paying debts and taxes, and ultimately distributing what remains to the beneficiaries named in the will (or, if there is no will, to heirs determined by California intestate succession law).
In Sacramento County and Placer County, straightforward probate cases typically take 12 to 18 months. Complex estates — those with real property in multiple states, disputes among heirs, unclear beneficiary designations, or significant creditor claims — can take two to three years or longer.
California Probate Fees
California Probate Code §10810 sets statutory fees for probate attorneys and executors based on the gross value of the estate — not the net value. This means a $1.2 million home with a $900,000 mortgage is valued at $1.2 million for fee purposes.
| Estate Gross Value | Attorney Fee | Executor Fee | Combined |
|---|---|---|---|
| $500,000 | $13,000 | $13,000 | $26,000+ |
| $750,000 | $18,000 | $18,000 | $36,000+ |
| $1,000,000 | $23,000 | $23,000 | $46,000+ |
| $1,500,000 | $28,000 | $28,000 | $56,000+ |
| $2,000,000 | $33,000 | $33,000 | $66,000+ |
These figures do not include court filing fees, appraisal costs, bond premiums, publication costs, or extraordinary fees for complex matters. A properly funded living trust avoids all of these costs.
The Probate Process Step by Step
File Petition
The executor (or, if no will, a proposed administrator) files a petition with the Superior Court. In Sacramento County, this is filed in the Probate Division of Sacramento Superior Court.
Court Hearing & Appointment
A judge appoints the executor or administrator and issues Letters Testamentary, which give the executor legal authority to act on behalf of the estate.
Notice to Creditors
The executor publishes a notice in a local newspaper and mails notice to known creditors. Creditors have four months to file claims against the estate.
Inventory & Appraisal
All estate assets are inventoried and appraised by a court-appointed Probate Referee. This establishes the taxable value and the basis for statutory fees.
Pay Debts & Taxes
Valid creditor claims, final income taxes, and estate taxes (if applicable) are paid from estate assets.
Petition for Distribution
The executor files a final accounting and petition for distribution. After court approval, assets are transferred to beneficiaries and the estate is closed.
Small Estate Procedures
California offers simplified procedures for smaller estates that may allow you to transfer assets without full probate:
Small Estate Affidavit (Personal Property)
If the total gross estate value is under $184,500 (adjusted periodically), heirs can use a sworn affidavit to collect personal property — bank accounts, vehicles, and other personal property — without court. Available 40 days after death under Probate Code §13100.
Affidavit Procedure for Real Property
Real property can sometimes be transferred without probate using a court order under Probate Code §13150 if the estate qualifies. A petition is filed and a hearing held, but it is significantly faster and cheaper than full probate.
Spousal Property Petition
A surviving spouse can often transfer community property and certain separate property to themselves through a spousal property petition — a faster, lower-cost alternative to full probate under Probate Code §13500.
Summary Administration
If all property passes to a surviving spouse or registered domestic partner, a streamlined summary administration procedure may be available, avoiding the full creditor claims period.
⚠️ Important: Probate Administration vs. Litigation
I handle probate administration — guiding executors through the court process to settle and close an estate. I do not handle probate litigation — contested wills, trust disputes, or heir lawsuits. If your matter involves a dispute, I can refer you to a qualified probate litigation attorney.
Frequently Asked Questions
What assets avoid probate in California?
Assets that pass outside probate include: assets held in a living trust, jointly owned property with right of survivorship, accounts with named beneficiaries (401(k), IRA, life insurance, POD/TOD accounts), and community property with right of survivorship. Planning ahead to title assets correctly is the most effective way to avoid probate.
What if there is no will?
California's intestate succession laws (Probate Code §6400 et seq.) determine who inherits. Generally, assets pass to a surviving spouse first, then children, then other relatives. A court-appointed administrator handles the probate process.
Can I avoid probate after someone has already died?
If the person has already passed without a trust, probate may be unavoidable for assets in their name alone. However, some assets may qualify for simplified procedures. Call us to review the specific situation — sometimes there are options people don't know about.
How much does a probate attorney charge?
In California, probate attorney fees are set by statute based on the gross estate value. On a $1 million estate, the statutory attorney fee is $23,000. These fees are in addition to executor fees, court costs, and appraisal fees. There is no way to negotiate below the statutory fee in a probate proceeding.
Do all estates go through probate?
No. Estates with a gross value under $184,500 (as of current limits) may qualify for simplified procedures. Estates with assets properly titled in a living trust, held jointly, or with beneficiary designations also avoid probate. The key question is how assets are titled, not just their total value.
Need Help with Probate?
Whether you're an executor navigating an open estate or planning ahead to avoid probate entirely — call Sacramento probate attorney Dustin MacFarlane for a consultation.
6957 Douglas Blvd., Granite Bay, CA 95746 · Serving Sacramento, Placer & El Dorado Counties