Probate is the legal process through which a deceased person's estate is distributed to heirs and designated beneficiaries, and any debt owed to creditors is paid off. It typically involves an overview of the deceased's assets, payment of any outstanding obligations, and the distribution of the remaining estate under the supervision of a probate court.
In California, probate laws are particularly detailed. Here’s what you need to know.
In this article:
- The probate process: step-by-step in California
- Which assets are subject to probate in California?
- What’s the minimum estate value for probate in California?
- How long does probate take in California?
- How much does probate cost in California?
- Who’s responsible for probate in California?
- How are debts managed in California's probate process?
- Comparing probate in California with other states
The probate process in California: step-by-step
In California, the probate process generally follows these steps:
Filing a petition: A petition must be filed with the local probate court to either admit the will to probate and appoint the executor. Or, if there's no will, to appoint an administrator of the estate.
Notification: Next, notice is given to all heirs under the will or to statutory heirs (if no will exists), often involving a publication in a local newspaper to alert potential creditors of the deceased.
Inventory of the estate: The executor/administrator then assembles, catalogs, and appraises the deceased person's assets. This is submitted to the court.
Payment of estate debts: Any outstanding obligations or debts of the deceased person are paid off from the estate's funds.
Distribution of the remaining assets: After all debts, taxes, and administrative costs have been paid, the remaining assets are distributed to the heirs or designated beneficiaries.
Which assets are subject to probate in California?
In California, the following assets are subject to probate:
Solely-owned property: Any asset that was solely owned by the deceased person with no designated beneficiary is subject to probate. This could include bank accounts, cars, houses, personal belongings, and business interests.
Tenant in common property: If the deceased person owned property as a tenant in common with others (not as joint tenants), their share of the property is subject to probate.
Interest in a partnership or corporation: The deceased person's interest in a partnership or corporation will generally be subject to probate unless there is a buy-sell agreement or a shareholders' agreement that specifies otherwise.
Investments: Investments, including stocks, bonds, and mutual funds owned solely by the deceased person, will also go through probate.
Other assets that do not have to go through probate in California, such as:
Jointly-owned property: Property owned in joint tenancy or as tenants by the entirety will pass to the surviving owner(s) without going through probate.
Life insurance policies and retirement accounts: These assets are not subject to probate if a beneficiary is named. The proceeds from life insurance policies and retirement accounts like IRAs, 401(k)s, and annuities will pass directly to the named beneficiaries.
Trust assets: Assets that have been placed in a trust, such as a revocable living trust, are not subject to probate. The trustee can distribute these assets to the named beneficiaries without court supervision.
Pay-on-Death and Transfer-on-Death accounts: California allows for "pay-on-death" (POD) designations for bank accounts and "transfer-on-death" (TOD) designations for securities. These assets will pass directly to the named beneficiary without probate.
Community property with right of survivorship: Community property with a right of survivorship is a type of property ownership unique to certain states, including California.
If a married couple or registered domestic partners own property and have designated it as community property with right of survivorship, then when one partner dies, the surviving partner automatically becomes the owner of the entire property, without the need for probate.
What's the minimum estate value for probate in California?
In California, probate is required when the total value of a deceased person's assets, excluding joint tenancy property and other non-probate assets, is $166,250 or more (as of 2020; this amount may be subject to change).
However, there are some simplified probate alternatives for smaller estates:
For personal property valued at $166,250 or less, a simple affidavit can be used to transfer the property to the beneficiaries without going through probate.
If the deceased person owned real estate valued at $55,425 or less, a similar simplified procedure can be used.
If the only asset is a vehicle, there's a simple form that can be filed with the Department of Motor Vehicles.
How long does probate take in California?
Probate can be a lengthy process in California. It generally takes a minimum of six to nine months, but it can extend beyond that, often lasting a year or more. Complex estates or disputes among beneficiaries can further lengthen the process.
How much does probate cost in California?
California probate law sets the compensation for the executor and the attorney for the executor as a percentage of the gross (not net) value of the property that goes through probate. The rates are 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, and so on, with the percentage getting gradually lower for each additional increment.
There are also court filing fees, appraisal costs, and other miscellaneous fees that can add to the cost. If the estate is complicated or if disputes arise, additional legal fees may be incurred.
Who’s responsible for probate in California?
The executor named in the will, or the administrator appointed by the court if there's no will, is responsible for managing the probate process. This person, often with the help of an attorney, is tasked with inventorying the deceased's assets, paying off debts, filing taxes, and eventually distributing the remaining assets to the beneficiaries.
How are debts managed in California's probate process?
The executor or administrator of the estate is responsible for notifying creditors of the deceased person's death. Creditors have a certain time frame, typically four months from the date of appointment of the executor or administrator, to file their claims for payment.
If the estate has enough assets, the debts are paid. If not, creditors are generally paid on a pro-rata basis.
Comparing probate in California with other states
Probate laws vary by state, and California's are considered more complex and potentially expensive due to statutory fees for executors and attorneys.
Some states, like Colorado and Arizona, have simplified probate processes for small or uncomplicated estates, while others, like Florida and New York, have more complex procedures similar to California.
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