Probate in California

Overview

California has one of the most complex probate systems in the United States. As a community property state, how assets are classified between community and separate property significantly impacts distribution. California does not follow the Uniform Probate Code (UPC), instead relying on its own comprehensive Probate Code. Recent 2025 legislation has substantially increased small estate thresholds and introduced new simplified procedures for primary residences.

Key Facts

• Governing Law: California Probate Code
• Court: Superior Court (Probate Division)
• Small Estate Threshold: $208,850 (2025)
• Typical Timeline: 9 to 18 months for standard estates; complex estates can take 2+ years
• Follows UPC: No

What Makes California Unique

• Community Property State — Assets acquired during marriage are jointly owned. The surviving spouse automatically owns their half, and only the decedent's half goes through probate. This fundamentally changes how estates are valued and distributed.
• Statutory Fee Schedule — California is one of the few states with fees set by law. Both executor and attorney fees are calculated as a percentage of the gross estate value (4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, and so on). These fees can be substantial.
• Independent Administration of Estates Act (IAEA) — Allows executors to sell property, pay debts, and distribute assets without prior court approval for each action, dramatically reducing court appearances and delays.
• 2025 Primary Residence Petition (AB 2016) — A groundbreaking new simplified procedure allows primary residences valued under $750,000 to transfer outside of full probate, potentially saving families tens of thousands in fees.
• Heggstad Petitions — California's unique Probate Code § 850 petition allows assets intended for a trust but never formally transferred to be moved into the trust without full probate, based on evidence of the decedent's intent.
• Probate Referee System — California uses state-appointed probate referees to independently appraise all non-cash assets, ensuring objective valuations but adding additional cost (0.1% of appraised value).

Probate Process Steps

1. File petition for probate with the Superior Court within 30 days of death
2. Publish Notice of Petition to Administer Estate in a local newspaper for 3 consecutive weeks
3. Court hearing to appoint executor or administrator
4. Send notice to known creditors and beneficiaries
5. Inventory and appraise all estate assets within 4 months of letters issuance
6. Manage and protect estate assets during administration
7. Allow creditor claims period (4 months from letters or 60 days from notice)
8. Pay valid debts, taxes, and expenses
9. File final accounting with the court (unless waived by all beneficiaries)
10. Petition for final distribution and court approval

Costs & Fees

Fee Structure: California uses a statutory percentage-based fee schedule for both executor compensation and attorney fees. Fees are calculated on the gross estate value (not net), which means mortgage balances and other debts do not reduce the fee base. For an estate with $1 million in gross assets, statutory fees would be $23,000 each for the executor and attorney — $46,000 total before any extraordinary fees.

Typical Attorney Fees: Statutory: 4% of first $100K, 3% of next $100K, 2% of next $800K, 1% of next $9M

Non-Lawyer Fees: $500 – $2,500 including court filing fees ($435 per petition), probate referee fees (0.1% of appraised assets), publication costs ($200–$500), and certified copies

Extraordinary fees for complex matters (tax issues, litigation, real estate sales) require separate court approval. Bond premiums, if required, typically run 0.5–1% of the bond amount annually.

Frequently Asked Questions