Bottom line: In California, when a family member dies without a living trust and the assets in their own name exceed the statutory small-estate limit, the estate usually has to go through court probate. For deaths on or after April 1, 2025, the small-estate limit is $208,850 (Probate Code §13100), and a typical California home will exceed it. According to the California courts' self-help website, formal probate generally takes 9 to 18 months, sometimes longer. Statutory fees for the attorney and the personal representative are calculated on the gross value of the estate, without first subtracting the mortgage. Simplified procedures exist for property passing to a surviving spouse, a primary residence worth up to $750,000, and similar situations. Placing assets in a living trust ahead of time is the most common way California families avoid probate.
The information in this article was verified as of November 2, 2026, and applies to California. Every case turns on its own facts; what follows is general information, not legal advice about your situation.
Key numbers at a glance (all checked against official sources)
| Figure | Where it applies | Statute / source |
|---|---|---|
| $208,850 | Small estate affidavit, 40 days after death (deaths on or after April 1, 2025) | Probate Code §13100, §890; Judicial Council adjusted-amounts table |
| $20,875 | Exclusion for the decedent's unpaid wages and other compensation | §13050(c); Judicial Council adjusted-amounts table |
| $69,625 | Affidavit for real property of small value, six months after death | §13200; Judicial Council adjusted-amounts table |
| $750,000 | Primary residence petition, 40 days after death | §13151 (AB 2016) |
| $435 | Court filing fee for a Petition for Probate, spousal property petition, or primary residence petition (most counties) | Gov. Code §70650, §70655; 2026 statewide fee schedule |
| 4% / 3% / 2% / 1% / 0.5% | Statutory fee tiers for the attorney and the personal representative | §10810, §10800 |
| 4 months | Creditor claim period, counted from the first issuance of Letters | §9100 |
| 1 year (18 months if a federal estate tax return is required) | Deadline for the personal representative to petition for final distribution or report to the court | §12200 |
These small-estate limits are adjusted every three years, with the next adjustment on April 1, 2028. Which figure applies depends on the date of death.
When is probate required?
Probate only covers property the decedent held in their own name without a named beneficiary. The following usually stay out of probate:
- Real estate and accounts already titled in a living trust;
- Property held in joint tenancy, which passes to the surviving joint tenant;
- Life insurance, 401(k)s, and IRAs with a named beneficiary, plus bank or brokerage accounts with a POD or TOD designation.
After setting those aside, if the remaining property in the decedent's own name exceeds the limits above, a probate case has to be opened. Many people assume a will keeps the family out of court, but a will itself has to go through probate before it can be carried out. Without a will, the intestate succession rules in Probate Code §6401 and §6402 decide who inherits; the court process still applies, and the court must appoint an administrator.
One more point: the text of §13100 still states a limit of $166,250, which is the old figure. Under §890, the Judicial Council publishes adjusted amounts every three years, and $208,850 applies to deaths on or after April 1, 2025. Keep this in mind when reading material online.
What simplified alternatives to formal probate are available?
1. Small estate affidavit (§13100)
If the decedent's California property is worth no more than $208,850 in total and 40 days have passed since death, the heirs can sign an affidavit and collect the property directly from banks, brokerages, and similar institutions, without going to court. Certain property listed in §13050 is left out of the total, as is a primary residence handled through a separate §13151 petition. This route is mainly used for bank deposits, stocks, and other personal property.
2. Affidavit for real property of small value (§13200)
If the decedent's California real property is worth no more than $69,625 in total, then six months after death the heirs can file Form DE-305 with the court, attaching an inventory and appraisal prepared by a probate referee. The court fee is $45 (Gov. Code §70626(b)(9)). Once the court issues a certified copy, it is recorded with the county.
3. Primary residence petition (§13151 and following)
This is a change brought by AB 2016 and applies to deaths on or after April 1, 2025. If the decedent's California primary residence is worth no more than $750,000 and 40 days have passed since death, the heirs can use Form DE-310 to ask the court to confirm the inheritance without opening a full probate. It only covers the primary residence; rental properties and second homes do not qualify. One court hearing is required, and the fee is $435.
4. Spousal property petition (§13500, §13650)
Under §13500, property that passes to a surviving spouse by will or by intestate succession (§6401) does not require formal administration. In practice, the surviving spouse usually asks the court to confirm this with a Spousal Property Petition (Form DE-221). This route has no dollar cap, and the fee is $435. Keep in mind that clearing this step does not end the issue: when the second spouse dies, if the home is still in their own name, the same question comes up again.
How does formal probate work, and why does it often take more than a year?
1. File the petition
File a Petition for Probate (Form DE-111) in the superior court of the county where the decedent lived, asking the court to appoint an executor (if there is a will) or an administrator (if there is not). The filing fee on the 2026 statewide fee schedule is $435; Riverside, San Bernardino, and San Francisco counties charge more because of local surcharges.
2. Mail notices and publish
At least 15 days before the hearing, notice must be mailed to the heirs and beneficiaries. Notice must also run three times in the legal notices section of a local newspaper, with the first publication at least 15 days before the hearing. Publication usually costs a few hundred dollars.
3. Hearing and Letters
Once the court approves the petition, it issues Letters, and only then does the personal representative have authority to act for the estate. The court may require the personal representative to post a bond. For a personal representative who lives outside California, the court can require a bond even if the will waives it (§8571).
4. Inventory and appraisal
The personal representative must file an inventory and appraisal within four months after Letters are issued (§8800). Assets other than cash are generally appraised by a probate referee appointed by the state, whose commission is one-tenth of one percent of the appraised value plus actual expenses (§8961).
5. Notify creditors and wait out the claim period
The creditor claim period ends on the later of four months after Letters are first issued, or 60 days after notice is mailed to that creditor (§9100). The estate generally cannot be closed and distributed during this period.
6. Pay debts, file taxes, and sell the house if needed
Debts are paid, and the decedent's final personal income tax return and the estate's income tax returns are filed. If the house has to be sold, the sale must follow the method the court authorizes.
7. Petition for distribution and close the estate
Within one year after Letters are issued (18 months if a federal estate tax return is required), the personal representative must petition for final distribution or explain to the court why the estate is not yet ready to close (§12200).
The California courts' self-help website estimates that the whole process generally takes 9 to 18 months, sometimes longer. Disputes among family members, heirs living abroad, a house that has to be sold first, or a crowded court calendar can all stretch the timeline.
How are attorney fees and personal representative compensation calculated?
Statutory attorney fees are set by §10810 and statutory personal representative compensation by §10800. Both use the same tiers:
| Portion of estate value | Rate |
|---|---|
| First $100,000 | 4% |
| Next $100,000 | 3% |
| Next $800,000 | 2% |
| Next $9 million | 1% |
| Next $15 million | 0.5% |
| Above $25 million | Set by the court |
The base is the total appraised value on the inventory, plus gains on sales above the appraised value and income received during administration, minus losses on sales below the appraised value (§10800). The mortgage on the house is not subtracted first. A few illustrative figures:
- Estate appraised at $800,000: attorney $19,000, personal representative $19,000, $38,000 combined;
- Estate appraised at $1 million: $23,000 each, $46,000 combined;
- Estate appraised at $1.5 million: $28,000 each, $56,000 combined.
These figures cover ordinary services only. For extraordinary services such as selling a house, litigation, or tax disputes, the court can approve additional fees (§10811 for the attorney, §10801 for the personal representative). A family member serving as personal representative may also choose to waive compensation. On top of that come court fees, publication costs, the referee's commission, bond premiums, and certified copies; the courts' self-help website notes that these administrative costs often run well over $1,000.
Are probate files public?
Yes. Under California Rules of Court, rule 2.550(c), court records are presumed open unless the law requires confidentiality. The petition, the will, the inventory, and other documents filed with the court are generally open to anyone, and some counties also make case information available online. Administering a living trust generally does not require filing anything with the court, so outsiders cannot see what is in the trust or who received what.
What changes if heirs or property are overseas?
- Heirs abroad can inherit. Probate Code §6411 provides that a person is not disqualified from inheriting because they are not a U.S. citizen.
- But they may not be able to serve as administrator. A person who does not reside in the United States generally cannot be appointed administrator; this restriction does not apply if the will names that person as executor (§8402). The court may also require a non-California-resident executor to post a bond (§8571).
- Documents need notarization and authentication. Consents, bond waivers, and similar documents signed by heirs abroad usually need to be notarized locally and then authenticated. Mainland China joined the Hague Apostille Convention effective November 7, 2023, so public documents between the two countries can generally use an apostille instead of consular legalization. It is best to confirm the exact format requirements before signing.
- Property and accounts abroad follow local procedures. California probate mainly deals with California property; property in another country is governed by that country's inheritance rules.
When a spouse is not a U.S. citizen, special estate tax rules apply. Which arrangement fits depends on the family's circumstances and needs its own analysis, so we do not go into it here.
Are Prop 19 and probate the same thing?
No. Probate and living trusts determine who inherits the house and how title is transferred, while Prop 19 determines how property tax is calculated after the inheritance. When children inherit a parent's primary residence, they must claim the homeowners' exemption and move in within one year to possibly keep the original tax base, and there is a cap: for transfers between February 16, 2025 and February 15, 2027, the exclusion amount is $1,044,586 (published by the California BOE). Whether or not the estate goes through probate does not affect how Prop 19 applies. For the detailed calculation, see our article Living Trust vs. Will in California: What's the Difference, and How Do You Avoid Probate?
How does a living trust avoid probate?
After the person who created the trust dies, the property in the trust is handled under the trust terms by the successor trustee you named in advance. No court appointment is needed, there are no statutory percentage fees for an attorney or personal representative, and the documents are generally not public.
The key is funding. The house must be deeded into the trust, and bank and brokerage accounts must be retitled or given beneficiary designations. If a trust is signed but never funded, the property stays in the person's own name and still has to go through probate. A Pour-Over Will is usually signed alongside the trust to sweep any missed property back into it, but if the missed property exceeds the limits, it still has to go through probate first.
Two more points to keep straight: a living trust does not reduce federal estate tax, and it does not change the Prop 19 rules.
A common scenario (anonymized example, not based on any specific client)
A father dies in Los Angeles County; the mother passed away a few years earlier. The house is appraised at $1.1 million and titled in the father's name alone, with no trust and no will. There are two children, one living in California and one in Shanghai.
The house is not a primary residence worth $750,000 or less, so the simplified procedure is not available and a formal probate has to be opened. The child in Shanghai does not reside in the United States and cannot serve as administrator, so the child in California petitions instead. The child in Shanghai signs a consent and a bond waiver, has them notarized locally with an apostille, and mails them back. Under the statutory tiers, attorney fees and administrator compensation are $24,000 each, $48,000 combined, before any other costs. More than a year from filing to final distribution is normal. Had the house been transferred into a living trust, most of these steps could have been skipped.
Main sources
- Judicial Council of California: Maximum Amounts for Determining Eligibility for Summary Succession Procedures (§890 adjusted amounts, effective April 1, 2025)
- Judicial Council of California: Superior Court of California Statewide Civil Fee Schedule (effective January 1, 2026)
- California Courts Self-Help Guide: Overview of formal probate
- Probate Code §13100, §13050, §13151, §13200
- Probate Code §13500, §13650
- Probate Code §10800, §10801, §10810, §10811
- Probate Code §8800, §8961, §9100, §12200
- Probate Code §6411, §8402, §8571
- California Rules of Court, rule 2.550 (court records presumed open)
- California State Board of Equalization news release NR-25-02 (Prop 19 adjusted amounts)
- Hague Conference on Private International Law (HCCH): Apostille Convention enters into force for the People's Republic of China
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Further reading: U.S. Estate Tax for Non-Resident Owners of American Homes and Stocks: What Foreign Families Need to Know