What probate actually is, how California changed it in 2025, and how to avoid it when you can.

What probate actually is.

In short: Probate is the California court-supervised process of collecting a deceased person’s assets, paying their debts, and distributing what’s left to heirs. In 2026, you usually need formal probate only when the estate exceeds $208,850 in total value, or $750,000 for a primary residence under AB 2016.

Probate is the court-supervised process of collecting a deceased person’s assets, paying their debts, and distributing what’s left to their heirs or beneficiaries.

In California, you usually need formal probate when the decedent owned real property (a house or vacant land) and the total estate value exceeds the small-estate threshold — with one major exception added in 2025 for primary residences. More on that in 2026 thresholds.

If the decedent had a properly funded living trust, joint tenancy, community property with right of survivorship, or a recorded Revocable Transfer on Death deed, probate may not be needed at all. Nine common scenarios that avoid probate are below.

Terms worth getting familiar with.

Decedent

The person who died.

Personal representative

The person the court appoints to manage the probate case. Called an Executor (if there’s a will) or Administrator (if there isn’t).

Testate · Intestate

Testate means the decedent left a valid will. Intestate means they didn’t.

Pro Per · Pro Se

A personal representative handling probate without an attorney. California allows this; it’s rarely advisable.

Heirs · Beneficiaries

The people entitled to the estate. Heirs by intestate law; beneficiaries by will or trust.

Estate

The real and personal property owned by the decedent at the time of death.

The thresholds that matter in 2026.

In short: Under California AB 2016 (effective April 1, 2025), the small-estate affidavit threshold rose to $208,850, and a new $750,000 simplified procedure was created specifically for the decedent’s primary residence.

California Assembly Bill 2016 took effect April 1, 2025 and materially changed who needs to go through full probate. If you’re reading older guides (including, until recently, this one), the numbers below are different.

The new primary-residence carve-out

The headline change in AB 2016 is a brand-new simplified procedure specifically for a decedent’s primary residence valued up to $750,000. If the home qualifies, the heirs can use a streamlined court process (Petition to Determine Succession to Real Property) instead of full probate — typically resolving in 2–4 months instead of 12–18.

Eligibility, in plain language:

• The home must have been the decedent’s primary residence at the time of death.
• Total gross value of the home, less encumbrances (mortgages, liens), must be $750,000 or less as of date of death.
• At least 40 days must have passed since the death.
• No formal probate already opened.

Other 2026 updates

• Probate Code §13100 affidavit threshold: $208,850 for personal property (no real estate involved).
• Petition to Determine Succession to Real Property (§13150): $208,850 for non-primary-residence real property; or $750,000 for the primary residence under the new carve-out.
• Revocable Transfer on Death deed (RTOD): still authorized through January 1, 2032. Available only for 1–4 unit residential property, a condo, or up to 40 acres improved by a single-family home.
• DE-111 petition filing fee: approximately $435 in most California superior courts as of the 2026 fee schedule. Fee waivers available for low-income filers.
• Statutory attorney & PR fees (§10810): unchanged graduated schedule based on gross estate value. 4% of the first $100K, 3% of the next $100K, 2% of the next $800K, 1% of the next $9M, and so on.

Nine scenarios where probate isn’t needed.

In short: Living trust, joint tenancy, community property, RTOD deed, Spousal Property Petition, Heggstad petition, the AB 2016 primary-residence carve-out, or the small-estate procedures — any one of these can skip or shorten probate entirely.

Before filing anything, check whether any of these apply. Several can resolve a home transfer in weeks instead of months.

01 · Living trust

If the home is vested in a living trust, the successor trustee has the legal authority to sell or distribute. No probate. See the Trust Sales page.

02 · Joint tenancy

If title is held in joint tenancy and at least one joint tenant is still alive, the survivor takes the deceased tenant’s interest automatically. File an Affidavit of Death of Joint Tenant with the county recorder. No probate.

03 · Community property

For married couples, community property passes to the surviving spouse. If there’s no will, no probate is needed — the surviving spouse files a Spousal Property Petition (Form DE-221).

04 · Community property with right of survivorship

Like joint tenancy but specifically for spouses. The survivor takes 100% on the first death, regardless of what any will says. No probate on the first death.

05 · Revocable Transfer on Death (RTOD) deed

If the decedent recorded an RTOD deed during their lifetime, the named beneficiary takes title on death by filing an affidavit. Available in California through January 1, 2032, and only for: a 1–4 unit residence, a condo, or up to 40 acres improved by a single-family home.

06 · Spousal Property Petition (DE-221)

A surviving spouse can petition to confirm community property and separate property passing under a will to them. Faster than full probate — typically 3–4 months.

07 · Heggstad petition

When the decedent intended to put property in their living trust but never recorded the deed (often because of a refinance that wasn’t reversed). A Heggstad petition asks the court to confirm the property as a trust asset. Roughly 4 months.

08 · Primary residence up to $750,000 (new in 2025)

The AB 2016 carve-out covered above. Petition to Determine Succession to Real Property under §13150, with the new $750,000 cap for primary residences.

09 · Small estate (§13100 affidavit / §13150 petition)

For estates under $208,850 in total non-real-estate value, heirs can collect personal property with a sworn affidavit. For real property under $208,850 (non-primary-residence), a streamlined court petition.

What happens if there’s no will.

When someone dies without a valid will (intestate), California Probate Code §8461 sets the order of priority for who can be appointed Administrator:

1. Surviving spouse or registered domestic partner
2. Children
3. Grandchildren
4. Parents
5. Brothers and sisters
6. Grandparents
7. Issue of grandparents (aunts, uncles, cousins)

The same order generally governs who inherits, with shares determined by Probate Code §6400 et seq. Spouses and registered domestic partners take community property in full, and a portion of separate property depending on whether the decedent left children, parents, or siblings.

Information to gather before you file.

If probate is needed, the following documents make the petition straightforward. If they’re missing, we can usually find them — but knowing what to look for saves weeks.

• The original will, if one exists. A photocopy is acceptable for some purposes but the court strongly prefers the original.
• Certified death certificates. Order at least five from California Vital Records or the county recorder.
• Most recent grant deed for each parcel of real property. Shows exactly how title is vested — this determines whether probate is needed at all.
• Most recent property tax bill for each parcel. Confirms the primary residence (relevant to the $750,000 carve-out) and any unpaid taxes.
• Most recent federal tax return. Lists out-of-state property and rental income that may not appear on local deeds.
• List of known heirs and beneficiaries with current addresses. Required for the notice that follows the petition.
• Bank, brokerage, and retirement account statements closest to date of death. Needed for the Inventory & Appraisal.

The probate process, start to finish.

Probate is filed in the county where the decedent resided at the time of death — not where the property is located. Resident of LA County who owned property in San Diego: probate is filed in Los Angeles.

Step 1 · Petition for Probate (DE-111)

The Petition for Probate is filed with the superior court in the decedent’s county of residence. Filing fee is roughly $435 in 2026 (fee waivers available). A court hearing date is set approximately 30 days out.

If there’s a will, the original is attached. A Notice of Petition to Administer Estate is mailed to all heirs and beneficiaries and published in a local newspaper of general circulation.

Step 2 · First hearing

Approximately 30 days after filing. The personal representative is appointed if there are no objections — they don’t need to attend personally if represented by an attorney. Objections (usually from another family member who wants to be appointed instead) typically result in a 30–45 day continuance.

Once appointed, the PR files Duties and Liabilities of Personal Representative (DE-147), pays associated fees, and becomes an officer of the court.

Step 3 · Order for Probate & Letters

Within about two weeks of the hearing, the judge signs the Order for Probate (DE-140) and the Letters issue (DE-150). The Letters are the personal representative’s formal authority to act on behalf of the estate — certified copies are what banks, government agencies, and title companies will ask for.

Depending on the case, the PR receives Letters Testamentary (with a will), Letters of Administration (no will), or Letters with Will Annexed. The court also grants full or limited authority — see Full vs. limited authority below.

Step 4 · Initial notices

Within 60 days of Letters, the PR files a Change in Ownership Statement (BOE-502-D) with the county assessor for any real property. Within 4 months, the PR notifies known creditors and specific California state agencies. Within 120 days, the Inventory & Appraisal is filed.

Step 5 · Selling the property

If real estate is being sold, the procedure differs based on the authority granted. See below.

Step 6 · Final petition & distribution

Once creditor claims have closed (4 months after Letters), the PR files the Final Petition with an accounting of every dollar in and out. The judge approves; the Order for Final Distribution is signed; heirs receive their shares and sign Receipts on Final Distribution. The case closes with the Ex Parte Petition for Final Discharge (DE-295).

Full authority vs. limited authority sales.

Full authority

The personal representative can accept an offer and close escrow without coming back to court. Required: file a Notice of Proposed Action (DE-165) to all heirs; 15-day objection window; if no objections, close escrow. Heirs can waive the wait with DE-166.

Limited authority

The sale must be confirmed at a court hearing. Key requirements:

• Probate referee re-appraises within one year of the intended sale.
• Accepted offer must be at least 90% of the re-appraised value.
• Minimum 10% earnest money deposit.
• Property advertised in a local newspaper: 3 publications over ≥ 10 days, the last one at least a week after the first.
• File Report of Sale and Petition for Order Confirming Sale (DE-260). Court sets hearing ≥ 30 days out.
• At the hearing, overbidders may show up with cashier’s checks for 10% of their bid.
• Judge signs DE-265 confirming the sale.

Overbid math

If overbidders show up at the confirmation hearing, the minimum overbid is calculated as:

Minimum overbid = original bid + 10% of the first $10,000 + 5% of the remainder.

Example: original bid of $526,000. 10% of $10,000 = $1,000. 5% of $516,000 = $25,800. Minimum overbid = $552,800.

Notice to creditors.

Within 4 months of Letters, the personal representative files a Notice to Creditors (DE-157) informing known creditors and specific California state agencies of the decedent’s passing.

Required state-agency notifications (within 90 days of Letters):

• California Franchise Tax Board
• Department of Health Care Services (Medi-Cal recovery)
• Victim Compensation and Government Claims Board
• Employment Development Department
• California Department of Tax and Fee Administration (formerly the Board of Equalization)

Creditors must file a Creditor’s Claim (DE-172) within 4 months of receiving the notice, or 60 days after personally receiving notice — whichever is later. After that window closes, the estate is not liable for unsecured debts.

Priority of claims

1. Debts owed to the United States or the State of California (IRS, FTB)
2. Administrative expenses (attorney fees, PR fees, court costs)
3. Secured creditors (mortgages, liens against estate property)
4. Funeral and last-illness expenses
5. Family allowance
6. Wage claims (employees of the decedent)
7. General unsecured creditors

Inventory & Appraisal (DE-160).

Filed within 120 days of Letters. Lists every estate asset and its value as of date of death. Cash, bank balances, brokerage accounts, vehicles, jewelry, business interests, and real property.

Cash and equivalents the PR values directly. Everything else — including real estate — is appraised by the court-appointed probate referee. The referee’s fee is set by statute at 1/10 of 1% (0.1%) of the appraised value, plus mileage and basic expenses, with a $75 minimum and $10,000 maximum per estate.

The referee typically values real property from public records and comps without entering the home. Giving them clean data — condition photos, contractor bids for known issues, recent comparable sales — results in a more accurate appraisal. More on the probate appraisal page.

Final petition & distribution.

Once the creditor period (4 months after Letters) has closed and the estate’s assets have been gathered, the personal representative files a Final Petition for Distribution. It includes:

• A complete accounting of every dollar in and out
• The proposed distribution to heirs or beneficiaries
• The statutory fees claimed by the attorney and PR (Probate Code §10810)
• Any extraordinary fees being requested

The judge reviews the petition, signs the Order for Final Distribution, and heirs receive their shares. Each heir signs a Receipt on Final Distribution acknowledging what they received.

The case formally closes with the Ex Parte Petition for Final Discharge and Order (DE-295) — the PR’s final discharge from duties and liabilities.

Statutory fees (Probate Code §10810)

The graduated fee schedule, applied separately to the attorney and the personal representative:

• 4% of the first $100,000
• 3% of the next $100,000
• 2% of the next $800,000
• 1% of the next $9,000,000
• 0.5% of the next $15,000,000

Example: on a $700,000 estate, statutory fee = $4,000 + $3,000 + $10,000 = $17,000 to each of the attorney and the PR.

California probate forms, by stage.

All forms are available free from the California Courts at courts.ca.gov/forms.htm.

Start of probate

After first hearing

Within 60 days of Letters

Selling under full authority

Selling under limited authority

Within 120 days of Letters

Final distribution

Timeline at a glance.

In short: A typical California probate runs 12 to 18 months from petition to final discharge. Mandatory waits (30 days to first hearing, 4 months for creditor claims, 15 days for NOPA) can’t be compressed. Everything else can.

A typical California probate runs 12–18 months from petition to final discharge. The mandatory waiting periods — 30 days to first hearing, 4 months for creditor claims, 15 days for NOPA — can’t be compressed. Everything else can.

County probate courts.

Frequently asked questions.