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Probate is the legal process that is typically required after someone passes away. Probate serves several purposes, the most important of which are to ensure that the decedent’s assets are identified and distributed to the intended beneficiaries and/or heirs as well as to allow creditors the opportunity to file claims against the estate.
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Some type of probate is usually required; however, for small estates, formal probate may not be necessary. Estates valued at less than $150,000 may not require formal probate; however, because of the complex nature of California’s probate laws and rules you should consult with an experienced probate attorney to determine what type of probate, if any, is required.
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If the decedent left behind a valid Last Will and Testament the individual named as Executor in the Will oversees the probate of the estate. If the decedent died intestate (without a Will), a spouse, friend, or family member usually volunteers to be the Administrator of the estate. If no one volunteers, the court will appoint an Administrator.
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Some assets bypass the probate process altogether, meaning they can be distributed to the intended beneficiaries right away. Common examples of non-probate assets include:
- Asset held in a trust
- Proceeds of a life insurance policy
- Assets held in a “payable on death (POD)” account
- Certain types of jointly held property
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Several factors will determine how long the probate process takes; however, creditors of the estate have up to four months from the time the Personal Representative (Executor or Administrator) was given the authority to proceed with probate to file a claim. Consequently, probate typically takes a minimum of six months to complete. For larger estates with valuable and/or complex assets, or for estates that are challenged, the probate process can easily take more than a year to conclude.
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The law does not require you to retain an attorney; however, given the complexity of the process, the ease with which an error can be committed, and the importance of what it is at stake, most Executors/Administrators choose to retain an experienced probate attorney to assist them during the probate process.
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If the decedent failed to execute a valid Last Will and Testament prior to his/her death the estate is referred to as an “intestate” estate. In that case, the California laws of intestate succession govern the disposition of probate assets. Typically, it means that only a spouse and/or close relatives will inherit from the estate.
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Although every estate is unique, there are some common steps in the probate of most estates, including:
- Identifying, locating, and valuing estate assets
- Opening probate
- Authenticating the Will
- Identifying legal heirs in an intestate estate
- Notifying creditors
- Reviewing creditor claims
- Litigating and challenges
- Paying estate taxes
- Transferring and distributing assets to beneficiaries and/or heirs
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Probate is the court-supervised legal process used to administer a deceased person’s estate. In California, probate generally involves validating a Last Will and Testament if one exists, identifying and valuing estate assets, paying debts and taxes, resolving disputes, and distributing remaining property to beneficiaries or heirs. Probate also establishes the legal authority necessary for an Executor or Administrator to act on behalf of the estate. Without court authorization, financial institutions, title companies, and other entities may refuse to release or transfer assets.
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Not every estate in California requires formal probate administration. Some estates qualify for simplified procedures, while certain assets bypass probate altogether. California offers the following alternatives to formal probate for qualifying smaller estates:
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- Automatic transfer of ownership: Not all assets are required to go through any type of probate. Before contemplating the need for an alternative to formal probate, consider if the asset is one that bypasses probate altogether. Common examples are jointly owned property if titled with rights of survivorship, life insurance proceeds, and assets held in a living trust.
- Small Estate Affidavit: If the estate value is less than $208,850 (as of 2026), you may be able to use a Small Estate Affidavit. If formal probate has not been opened or you have the permission of the Personal Representative, you may be able to fill out a small estate affidavit and submit it to the individual or entity in possession of the asset you wish transferred. There is a 40-day waiting period following the decedent’s death before you can use a Small Estate Affidavit.
Affidavit for Real Property of Small Value: For real estate that doesn’t exceed $69,625 in value (as of 2026) you may be eligible to file an “Affidavit Re: Real Property of Small Value” (commonly referred to as a Form DE-305) with the appropriate probate court and record the affidavit with the County Clerk-Recorder in the county where the real estate is located. If the affidavit is accepted, the property will be transferred without the need to wait for formal probate.
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One of the most important probate concepts involves distinguishing between probate assets and non-probate assets. Probate assets are generally assets titled solely in the decedent’s name that do not automatically transfer upon death. Examples commonly include individually owned bank accounts, real estate held solely in the decedent’s name, and personal property without designated beneficiaries. Non-probate assets transfer automatically outside of probate through contractual arrangements or ownership structures. Common examples include:
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- Assets held in a living trust
- Life insurance proceeds with named beneficiaries
- Retirement accounts with beneficiary designations
- Jointly owned property with rights of survivorship
- Payable-on-death (POD) accounts
- Transfer-on-death (TOD) accounts
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If the decedent left a valid Will, the individual named as Executor typically oversees probate administration. The Executor must petition the probate court for appointment and receive legal authority before acting on behalf of the estate. If no Will exists, or if the named Executor cannot serve, the court appoints an Administrator. California law establishes priority regarding who may serve as Administrator, with close family members generally receiving preference.
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Administering an estate involves numerous responsibilities that may continue for many months or longer depending on the complexity of the estate. Common duties include:
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- Identifying and securing assets
- Determining which assets are subject to probate
- Filing court documents
- Notifying creditors and beneficiaries
- Paying debts and taxes
- Managing estate property
- Resolving disputes
- Preparing accountings
- Distributing remaining assets
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When a person dies without a valid Will, the estate is referred to as an “intestate” estate. In that situation, California intestate succession laws determine who inherits probate assets. The distribution framework depends on which relatives survive the decedent. Surviving spouses, children, parents, siblings, and more distant relatives may inherit according to statutory priority rules. Stepchildren, close friends, and charitable organizations, however, will not inherit under California’s intestate succession laws and as a result, intestate succession frequently produces outcomes that may not reflect the decedent’s actual wishes.
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Formal probate can be time-consuming, expensive, and public. In California, creditors must be given time to submit claims against the estate, which contributes to delays even in relatively straightforward cases. In addition, the costs associated with probate can be significant which can reduce the value of assets ultimately distributed to beneficiaries. Privacy is another important consideration. Probate proceedings generally become part of the public record, meaning financial information, asset details, and family disputes may become publicly accessible.
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The length of probate administration varies significantly depending on the complexity of the estate and whether disputes arise. Even relatively simple probate proceedings commonly require many months because of mandatory notice periods, creditor claims, court scheduling, and administrative requirements. Creditors generally have the later of four months after a personal representative is appointed, or 60 days after a formal Notice of Administration is mailed or delivered to them to file a claim, meaning probate cannot be concluded until after the relevant waiting period has expired. Straightforward estates may sometimes conclude within nine to eighteen months, while more complex estates may remain open for several years.
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In some situations, probate can be minimized or avoided through comprehensive estate planning. Common probate-avoidance strategies include:
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- Revocable Living Trusts
- Joint ownership arrangements
- Beneficiary designations
- Transfer-on-death deeds
- Payable-on-death accounts
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Probate disputes sometimes arise when interested parties challenge the validity of a Will or question the actions of the Executor. Beneficiaries may challenge an Executor’s conduct if they believe estate assets are being mismanaged or fiduciary duties have been violated. When litigation occurs, probate administration may become significantly more complicated and prolonged. Courts may need to conduct hearings, review evidence, and resolve contested legal issues before administration can continue. Common grounds for Will contests include allegations involving:
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- Lack of testamentary capacity
- Undue influence
- Fraud
- Forgery
- Improper execution
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California law does not require an Executor/Administrator to retain an attorney during probate, but having an experienced attorney on your side is usually a wise choice unless you are probating a very small and uncomplicated estate. Probate administration frequently involves complicated legal procedures, strict filing requirements, creditor issues, tax obligations, and fiduciary duties and mistakes can delay administration, increase expenses, or expose the Executor to liability.
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Contact Us
If you have additional questions or concerns, contact the experienced Los Angeles probate attorneys at Schomer Law Group by calling (310) 337-7696 to schedule your appointment today.
