No one wants to go through probate. You especially don’t want to have to go through probate in California. It is a cumbersome, time-consuming, rules-driven process, and the rules can vary from county to county. But it is absolutely necessary if your loved one died without any estate plan or only a will.
We have guided hundreds of people through probate in California. We have helped them successfully navigate the process to complete probate, receive their inheritance, and move on with their lives.
By the time you finish reading this guide, you will know whether you need to go through probate, what the process is like, and the pitfalls to avoid.
Probate is the court-supervised process of gathering, managing, and distributing the assets of a deceased person to the people who are supposed to inherit them. Probate is necessary when property cannot be transferred from the deceased person to a living person because the title is held in the name of the deceased person. You might think of it this way, if the deceased person would need to sign a document in order to transfer ownership of an item then probate will be necessary.
In order to require probate in California the total, the gross value of the assets in a deceased person’s estate must be $166,250 or more. If there is no real estate that needs to be passed and the total value of the assets is below $166,250, then you can use an informal proceeding called a small estate affidavit. A small estate affidavit does not require filing anything with the probate court.
If the deceased person’s estate contains real estate worth less than $166,250, then you can use a petition to determine succession to real property. This does require filing pleadings with the probate court. However, this is not full-blown probate. This is a shorter, less expensive proceeding in the probate court that will result in transferring real estate without probate.
If the deceased person was married when they died, then their spouse may be able to avoid probate for the assets that are community property. The surviving spouse can file a Spousal Property Petition with the probate court. If the petition is granted then all assets identified in the petition will not go through probate.
After applying all these exceptions, if the gross value of all the assets owned by the deceased person is over $166,250, then you must do probate.
In determining whether you need probate, you must first evaluate which of the deceased person’s assets are actually subject to probate. As you might imagine, not everything owned by a deceased person will be subject to probate.
If the deceased person had a trust, and they actually transferred title of their property to the trust, then everything in the trust is not subject to probate. But, having a trust alone is not enough to avoid probate. The deceased person must have actually transferred title to their property while they were alive.
Any property the decedent owned in which the deceased person’s interest terminates at death is not subject to probate. Common examples include:
Also excluded from probate are multi-party accounts, Pay On Death accounts, and Totten Trust accounts.
Similarly, assets that have designated beneficiaries are excluded from probate, such as:
The lesson to take from all of this is after your loved one has died, check to see how title was held to the property you believe may have to go through probate. If the title was changed in such a way that probate can be avoided, then you don’t have to open probate. If you don’t have title information and the financial institution that has the financial information won’t give it to you, then probate is likely necessary.
To open probate you, or your attorney, must file the following documents with the probate court:
These documents are the bare minimum that must be filed with the probate court. In many counties, additional local forms must be filed as well. Some counties have local rules that require you to provide additional information but don’t provide a form or specify exactly how that information must be presented. Each county will have the local rules, and local forms, on their court’s website.
After your pleadings are filed, the clerk of the court will set an initial hearing date on your petition for probate. After you have that date you will need to file the following documents with the probate court:
Most, but not all, probate courts publish probate notes on their website before your hearing date. The probate notes are written by attorneys or paralegals who assist the probate court judge. The probate notes typically summarize what has been done, the relief being requested, and any deficiencies or defects in the pleadings that have been filed. The probate notes will also point out any pleadings that have not been filed but are required.
Simply stated, probate notes will help you identify anything that might hold your case up and give you a good idea of how to proceed.If there are any problems with your pleadings then a supplement can be filed with the probate court in order to address the noted deficiencies or defects.
You may get probate notes 2-3 weeks before your first hearing. In other cases, you may only get probate notes a couple of days before your initial hearing. Regardless of when you receive probate notes, it’s imperative that you take immediate action to resolve any deficiencies or defects. If you have any unaddressed concerns from the probate notes, your case may not be able to move forward.
Assuming you’ve cleared all the probate notes and no one objects to your petition for probate then you can expect it will be granted at the first hearing. Once your petition has been granted, then the probate court judge will sign your order for probate and your letters testamentary or letters of administration.
Different courts have different processing times for the orders and letters. They may be available as soon and the day after the hearing or it may take weeks. Once the order and letters have been signed by the probate court judge then you have successfully open probate.
Once your petition for probate has been granted, the court will sign the Order For Probate and your Letters Testamentary or Letters of Administration. You need both before you can move forward administering the probate estate.
Can you open an estate account before probate?
The short answer is no. No bank will allow you to open an estate account until you give them a certified copy of your letters and the employer identification number (EIN) for the estate.
You can apply for an EIN at any time after death by completing and submitting IRS Form SS-4. However, it makes no sense to do this on your own before the estate is open. Instead, this is a good time to hire an accountant to get the EIN for you and to begin a working relationship. We’ve seen clients get sued by the heirs or beneficiaries for failing to file tax returns and incurring penalties and interest.
Once the estate is open, two simultaneous processes are going to take place. First, the executor or administrator will gather the estate’s assets. Second, known creditors and unknown potential creditors must be addressed. Gathering assets is addressed immediately below. Creditor claims are addressed in Chapter 4.
Gathering estate assets
It is critically important the executor or administrator get possession, control, and/or title to estate assets after the order and letters are filed by the court. Common assets going through probate include:
Each of these types of assets can present unique challenges. We’ll dive into each of the assets below, their challenges, and how to solve these issues.
Bank accounts
The one challenge presented by bank accounts is locating them all. If the deceased person was secretive or just didn’t communicate well with the person who became executor or administrator, then the executor or administrator may not know about all the accounts.
So how can you get around this? By reviewing past income tax returns and collecting mail.
The income tax returns should show you the source of all interest income. In other words, it will show you the bank’s name. From there, you can go to any bank branch with a certified copy of your letters to collect the account.
You’ll also want to keep collecting the deceased person’s mail because you may receive bank statements. Once a year, at minimum, you will receive tax reporting documents from the bank.
Both tax returns and bank statements will tell you to highlight all the accounts where you can go and collect money.
Safe deposit boxes
If you believe there is a safe deposit box, then examine past bank statements or canceled checks. One of these should show you payment for the safe deposit box. You will then know which bank to contact.
To get into the box you will need the key. If you don’t have it, then you will have to make arrangements with the bank to have the lock drilled. Once that is done, you can collect the contents of the safe deposit box.
Mutual funds/securities
Similar to bank accounts, review past income tax returns and collect the deceased person’s mail. If you have access to their email, check that as well. One of these methods will turn up a statement that identifies what is owned, an account number, and who has possession of it.
For individual stocks, transfer agents can be a good source of information. BNY Mellon and Computershare are two of the largest.
Once you have that information, you will need to contact the institution. Be prepared to provide a copy of the death certificate, a certified copy of your letters, and to fill out their paperwork to transfer the mutual funds and/or securities.
Life insurance
Hopefully, your deceased loved one kept their life insurance policy in their records. If not, then look for canceled checks or electronic payments for the policy. Most insurance companies are quite helpful even without a policy number once you present them with your letters and a death certificate.
If you can’t find any identifying information for the life insurance policy but are convinced it exists, there are some services that can help you search for the policy. Be warned, these services don’t have complete information. That means even if the policy exists, they may not find it. If the life insurance policy has a face value below $50,000 then it very likely won’t be found by these services.
Automobiles
The most common problem with cars is locating the title (i.e. pink slip.) If you can’t find the title then you can apply for a replacement at the DMV. The form is available online.
Real estate
Real estate truly has its own unique challenges. A lost deed isn’t one of them. Deeds can be purchased from the county recorder’s office. Let’s go through the real challenges with real estate that executors will face.
Probate estate inventory and appraisal
The purpose for gathering all the assets is twofold. First, to secure those assets for use during probate and distribution at the end of probate. Second, because the executor or administrator must provide a list of all estate assets and their values on the day your loved one died. This list is called an inventory and appraisal.
The executor or administrator has four months from issuance of letters to file a completed inventory and appraisal with the probate court.
The Inventory and Appraisal (I&A) effectively comes in two parts: Attachment 1 and Attachment 2.
Attachment 1 is the assets appraised by the executor or administrator. They can only be cash and cash equivalents. Cash equivalents include undeposited checks and money market funds. Cash equivalents do not include rare, collectible, or foreign currency.
Attachment 2 contains assets appraised by the probate referee. The probate referee is a neutral third party appointed by the probate court to provide date of death values for all noncash assets in the probate estate.
Common items on Attachment 2 include:
Additional inventories may be needed later. An inventory and appraisal - reappraisal for sale will be necessary if real estate is sold one year or more after the deceased’s date of death. A supplemental inventory will be needed if assets belonging to the deceased come into the probate estate after the date of death.
The executor or administrator must deliver notice of administration of the estate, within 4 months of the letters being issued, to all known and reasonably ascertainable creditors. What this means is that if there is a known or suspected creditor (i.e. some person or entity that is owed money by the deceased), they must be sent a form called Notice of Administration to Creditors.
A Notice of Administration to Creditors is more commonly called a creditor’s claim. The time for a creditor to file a claim is either 4 months after the first issuance of letters or 60 days after the notice is served to the creditor, whichever comes later.
This deadline assumes the executor or administrator acted in good faith. If they fail to give notice to a known creditor, then the creditor can seek and receive an extension of time to pursue their claim.
If a creditor is discovered more than four months after letters are issued, then a creditor’s claim must be sent within 30 days of learning that information. The creditor in turn must file their claim within 60 days of the notice being mailed.
In addition to known or suspected creditors, California law requires notice to be sent to three state agencies: Victim Compensation & Government Claims Board, Department of Health Care Services, and Franchise Tax Board. It is critically important these government agencies are given proper notice. If they are not given notice, then the probate court judge will not approve your petition to distribute the estate.
The creditors' claim process is an incredibly powerful tool for the probate estate. A creditor who fails to properly and timely file their claim is barred from ever collecting on it. That means the creditor can’t take any type of action outside the probate court to collect on their debt.
When a creditor properly submits their claim, the executor or administrator must evaluate the claim. This is usually pretty straightforward. If the executor or administrator wants more information in order to evaluate the claim, they can contact the creditor to ask for more information.
Each claim must be approved, denied, or approved in part and denied in part. If the claim is approved, then the estate issues payment, and the creditor should sign an acknowledgment and satisfaction. This is the creditors' way of saying they have been paid in full.
If the claim is denied, the creditor has 90 days to file a lawsuit against the estate in civil court. From there, the lawsuit will proceed in the same way as any other lawsuit. If the creditor waits longer than 90 days to file, then the estate can seek dismissal based on the creditors' failure to timely file their lawsuit.
If a claim is partly approved and partly denied, the creditor has the same options as to when a claim is wholly denied. Most often, a claim is partly approved and partly denied because a compromise was reached with the creditor. If so, then the creditor isn’t going to file a separate lawsuit. In fewer situations, this is done because the executor or administrator recognizes some part of the claim (usually the large majority) is valid but some portion isn’t. While the creditor can still sue, it’s very unusual because there is so little money left at issue.
In order to distribute the remaining assets in the probate estate, a petition has to be filed with the probate court and approved by the court. That petition can either be a final account or a waiver of account. Either type of petition, when granted, will result in the distribution of the estate. We’ll dive into the two different petition types next and show you when to use both.
In most probate estates, the final account is the first and final account. The account must report the assets on hand at the time the deceased person died, all income and property received by the estate after the date of death, all money that has been disbursed since the date of death, and all property left on hand at the end of the accounting period.
The account shows all the beneficiaries or heirs what has happened with the estate’s finances during the course of probate. If any beneficiary or heir doubts what has been reported or is troubled by what is reported then they can file an objection to the account.
The petition to approve the first and final account shows the fees being sought by the executor or administrator and their attorney and how those fees were calculated. The petition will state how the remaining property should be distributed. In other words, who will receive what property from the estate.
If the beneficiaries or heirs trust the executor or beneficiary then they may agree to waive an account. Waiving an account simply means a person is giving up the formal financial reporting required by a court-compliant accounting. It doesn’t mean that a beneficiary or heir is giving up their right to receive their inheritance.
Different courts have different requirements about what they want to be disclosed to the beneficiaries or heirs in order to accept a waiver. In general, courts want something in writing in which the beneficiary or heir acknowledges they have been informed they have a right to an account, they understand they cannot be made to give up that right, and knowing this they are choosing to waive an account.
One way executors or administrators can facilitate a waiver is by providing the estate’s financial records to the beneficiaries or heirs. With this information in hand, they are in a position to decide if they really need a formal account. If they already have the information, then providing the account will delay filing to distribute the estate.
On the other hand, an executor or administrator who won’t share this information should not be surprised when an account is required.
After the first and final account or waiver of account is granted by the probate court and an order is entered, the executor or administrator has the authority to distribute the property in the estate. Real estate is distributed by recording the order or recording a deed. Cash can be distributed by check or wire transfer. When the estate-owned bank account is fully distributed, it can then be closed.
In order to know what your case will cost you have to calculate:
1. Probate Lawyer fees
2. Executor or Administrator fees
3. Filing Fees
4. Probate Referee’s Fees
5. Assorted out-of-pocket costs
To show you how to calculate these costs for your case we are going to use a simplified example. In our example, the assets going through probate are a $500,000 house and $200,000 in bank accounts.
In order to know how much a probate lawyer costs, you have to know that lawyer's fees. California doesn’t let probate attorneys set their own fees. Attorneys must charge based on California’s statutory fee schedule. A fee schedule is a percent that an attorney makes that's based on the total amount of assets going through probate. That fee schedule is:
Fee Schedule Percentage | Gross Value of Estate |
4% | $1- $100,000 |
3% | $100,001-$200,000 |
2% | $200,001-$1,000,000 |
1% | $1,000,0001-$10,000,000 |
0.5% | $10,000,001-$25,000,000 |
In our example, the total probate estate is worth $700,000. Notice we didn’t even consider whether there is a mortgage. That’s because in calculating fees, the estate’s debts are not considered. Probate attorney’s fees are based on the gross value of the property in the estate.
The statutory fee schedule is a tiered rate for attorneys' fees. The tiers build one on top of another. You start in the lowest valued tier and keep adding portions of the estate until you have exhausted the total value of the estate.
So, that $700,000 estate is subject to 4% of the first $100,000 or $4,000. 3% of the next $100,000 or $3,000. And 2% of the next $500,000 which is $10,000. Total executor’s fees attorney’s fees will be $17,000.
The fees for the executor or administrator are calculated in exactly the same way as the attorney’s fees. That means in our example, $17,000 is paid to the executor and $17,000 to the executor’s attorney.
Every probate case requires the filing of a probate petition at the beginning of the case and a petition to distribute the estate at the end of the case. Filing fees for the petition for probate are $435 throughout California. However, Riverside, San Bernardino, and San Francisco counties add a $15 first appearance fee. Court reporter fees are $30.
Many, but not all counties, charge the court reporter fee. The San Diego probate court, for example, does not charge a court reporter fee because they don’t provide court reporters. When you file to distribute the estate, you will pay another filing fee and probably a court reporter fee.
Most probate cases don’t require filing any other petitions. But notice the word most. If something unusual happens in your case, then there may be other petitions to file that require a filing fee. For purposes of our example, let’s assume things went smoothly so only two petitions were filed during the probate.
The Probate Referee is a neutral third party appointed by the probate court to value the noncash assets in the estate. Probate referees are paid 1/10 of 1% of the value of the property they appraise. They are also entitled to out-of-pocket costs they incur to do the appraisal. In our example, they will only value the house. The bank accounts are cash. Because the bank accounts are cash, the executor or administrator reports their value.
1/10 of 1% of a $500,000 house is $500. The probate referee is likely to incur about $75 in out-of-pocket costs as well.
You must publish notice of your petition for probate in an “adjudicated newspaper” in the area where the decedent resided. Each court has a list of those newspapers. Publication fees vary widely depending on location. Most times publication will cost between $200 and $500.
You will definitely need a certified copy of your letters testamentary or letters of administration. Most likely you will need multiple copies during your case. They will cost $40.50 each. You may need certified copies of the death certificate especially if you are trying to close accounts with a financial institution or collect a life insurance policy.
As you can see, the out-of-pocket costs will vary from one case to another. For our example, let’s say publication was $400, three certified copies of letters testamentary were needed, and no death certificates were needed. That would be $521.50 in out-of-pocket costs.
Let’s add it all up to what this entire probate cost.
Executor Fees $17,000
Probate Attorney Fees $17,000
Filing Fees $945
Probate Referee Fees $575
Assorted Costs $521.50
Total Costs $36,041.50
Probate is necessary when property cannot be transferred from the deceased person to a living person because the title is held in the name of the deceased person. If you don’t have another way of getting ownership of your deceased loved one’s property then probate is very likely necessary. Remember, nothing will happen on its own. You have to start the process.
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