Why probate is worth avoiding in California
California is a statutory percentage fee state, one of the handful that still are, and its schedule is among the most expensive in the country. Court filing fee: $435 for the petition for probate. Budget to pay $435 more than once, because the petition for final distribution carries its own $435 fee; the simplified Petition to Determine Succession to Real Property and the Spousal Property Petition also cost $435 each. Fee waivers are available on financial hardship. Add newspaper publication of the notice of petition (roughly $200 to over $1,000 depending on county and paper), certified copies, and the probate referee's appraisal fee (statutorily 0.1% of the value of the assets appraised, plus costs). The California Courts self-help guide notes administration costs "are often well over $1,000.00 and can be much more" before attorney fees. Statutory fees. The big number: Prob. Code § 10800 (personal representative/executor) and § 10810 (attorney) each set the same schedule for ordinary services: 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; and above $25 million, a reasonable amount fixed by the court. These are not hourly and not negotiable downward by the court for ordinary services, the attorney is entitled to them. The trap that shocks families: the percentage is computed on the gross value of the estate accounted for, the total appraised inventory value plus gains on sales and receipts, less losses on sales. Mortgages and other debt are not subtracted. A house appraised at $1,000,000 with a $700,000 mortgage: only $300,000 of real equity: still generates $23,000 in statutory attorney fees and $23,000 in statutory executor fees, $46,000 total against $300,000 of value. A $2,000,000 home produces $33,000 each, $66,000 total. Both can be charged; the executor commonly waives their half when they are also a beneficiary, since the fee is taxable income while an inheritance is not. On top of all that, the court may award "extraordinary" compensation under §§ 10801 and 10811 for litigation, selling real property, tax work, or running a business. This fee structure is precisely why probate avoidance is worth more in California than in almost any other state, a revocable living trust or a properly recorded TOD deed on a single $1.2 million home routinely saves $50,000 or more.
Minimum creditor claim period: Prob. Code § 9100 gives a creditor until the later of (1) four months after the date letters are first issued to a general personal representative, or (2) sixty days after notice of administration is mailed or personally delivered to that creditor. So the floor is four months from the appointment of the executor or administrator: and the clock starts at appointment, not at the date of death, so any delay in filing the petition pushes everything back. Realistic total duration: the California Courts self-help guide states "the entire process typically takes 9 to 18 months and can sometimes take even longer." In practice, expect 12 to 18 months for a clean estate. Getting the first hearing on the petition for probate alone commonly takes six to twelve weeks, and in the congested urban courts: Los Angeles, Alameda, Santa Clara, San Diego, Riverside, initial hearing dates of three to four months out are routine, which alone stretches simple estates past a year. Two to three years is normal when real property has to be sold, a federal estate tax return is required, an heir cannot be located, or there is a will contest or a dispute among siblings. Prob. Code § 12200 expects the personal representative to petition for final distribution within one year of appointment (eighteen months if a federal estate tax return is due), and if that deadline slips the representative must file a status report explaining why. By contrast, the alternatives are fast: a small estate affidavit under § 13100 requires only a 40-day wait and no court at all; a Spousal or Domestic Partner Property Petition usually clears in six to ten weeks; a Petition to Determine Succession to Real Property generally runs two to four months from filing to recorded order; and a funded revocable living trust can distribute in weeks with no court involvement whatsoever.
California protects the family first
California provides these, but note that unlike Uniform Probate Code states it does not set fixed statutory dollar figures for the homestead and family allowance, the court sets a reasonable amount. Probate homestead (Prob. Code §§ 6520–6528): the court may set apart a homestead out of the decedent's property for the surviving spouse and minor children. There is no dollar cap in the statute; the court selects the property and fixes the term, which may not extend beyond the surviving spouse's lifetime. It gives the family the right to stay in the home during administration, and it is not a transfer of outright ownership. Exempt property set-aside (Prob. Code § 6510): on petition, the court sets apart to the surviving spouse and minor children the items of property that are exempt from enforcement of a money judgment under the Code of Civil Procedure (CCP § 704.010 et seq.): household furnishings, one motor vehicle up to the statutory exemption amount, tools of trade, and similar items. Again no single dollar figure; the amounts track the CCP exemption schedule. Family allowance (Prob. Code §§ 6540–6545): the surviving spouse, minor children, and adult children who are physically or mentally incapacitated and were actually dependent on the decedent are entitled as of right to a reasonable family allowance for support during administration; adult dependent children and dependent parents may receive one in the court's discretion. There is no statutory dollar amount, the court fixes what is reasonable based on the family's needs and the size of the estate, and an allowance may be granted before the inventory is filed. It has priority over most creditor claims and over distributions to beneficiaries. Small estate set-aside (Prob. Code §§ 6600–6615): this is the one with a hard number. If the NET value of the estate: after all liens and encumbrances at the date of death and after any probate homestead set apart under § 6520: does not exceed $107,900 for deaths on or after April 1, 2025 ($95,325 for deaths April 1, 2022–March 31, 2025; the base figure in § 6602 is $85,900, adjusted every three years under § 890), the court may set the entire estate aside to the surviving spouse and minor children with no administration at all. Note the trade-off in § 6611: the spouse and minor children who take under this set-aside remain personally liable for the decedent's unsecured debts, up to the value of what they received.
Before death: what works in California
These have to be put in place while the owner is alive and competent. In California the tools available are:
- Revocable transfer on death deed (Rtodd) for 1-4 unit residential property
- Revocable living trust
- Community property with right of survivorship (Civ. Code 682.1)
- Joint tenancy with right of survivorship
- Payable-on-death (POD) bank accounts
- Transfer-on-death registration for securities and brokerage accounts
- Beneficiary designations on life insurance, IRAs, and retirement accounts
- DMV transfer-on-death vehicle beneficiary designation
- Small estate affidavit for personal property (Prob. Code 13100) - $208,850
- Petition to Determine Succession to Real Property - primary residence up to $750,000 (Prob. Code 13151)
- Spousal or Domestic Partner Property Petition - no dollar limit (Prob. Code 13650)
- Small estate set-aside to spouse and minor children (Prob. Code 6602) - $107,900
- Lifetime gifting
- Life estate deed (limited use; no lady bird deeds in California)
Real property: the transfer-on-death deed
Yes. California authorizes them, and the state's official name is the "Revocable Transfer on Death Deed" (often abbreviated RTODD or "TOD deed"). California did not adopt the Uniform Real Property Transfer on Death Act; it wrote its own statute (AB 139, effective Jan. 1, 2016, substantially rewritten by SB 315 effective Jan. 1, 2022), so out-of-state form deeds and generic "beneficiary deed" templates will not comply. Six things families get wrong: (1) sunset. Prob. Code § 5600 states the part "shall remain in effect only until January 1, 2032, and as of that date is repealed, unless a later enacted statute.. deletes or extends that date." The Legislature has extended it once already, but anyone signing one should calendar this. (2) property limits (§ 5610): only 1-to-4 residential dwelling units, a condominium unit, a single tract of agricultural land of 40 acres or less with a single-family residence on it, or a mobilehome/manufactured home. It cannot be used for raw land, apartment buildings, or commercial property. (3) two witnesses, since Jan. 1, 2022 the deed must be signed by the transferor and by two witnesses who are present at the same time (§ 5624), in addition to notarization. Notarization alone is no longer enough, and deeds signed on pre-2022 forms are being rejected. (4) 60-day recording deadline, the deed must be recorded in the county where the property sits within 60 days of the date it was notarized (§ 5626), or it is void. A deed found in a drawer after death is worthless. (5) survivorship title beats it, if the home is held in joint tenancy or as community property with right of survivorship, the survivorship transfer controls and the TOD deed does nothing. (6) after death the beneficiary records an affidavit of death of transferor plus a change in ownership statement, and must serve notice on the transferor's heirs under § 5681; those heirs then have 120 days from that notice to contest the deed. Beneficiaries are also personally liable for the decedent's unsecured debts up to the net fair market value of the property received (§§ 5672, 5674), meaning a TOD deed avoids probate but does not wipe out creditors. Practical consequence: many title insurers are reluctant to insure a sale by the beneficiary until the contest and creditor windows have run, so the house often cannot be cleanly sold for several months. For property that does not qualify (commercial, raw land, multi-unit, out-of-state), or where multiple properties or minor beneficiaries are involved, a revocable living trust remains the standard California tool. California does not recognize "lady bird" / enhanced life estate deeds; a traditional life estate deed is technically possible but is irrevocable without the remainderman's consent and loses the full step-up in basis, so it is rarely the right answer here.
Cal. Prob. Code §§ 5600–5696 (statutory form at § 5642; witness requirement § 5624; 60-day recording deadline § 5626; post-death notice to heirs § 5681; beneficiary debt liability §§ 5672, 5674)
Usually the best real-property answer
A transfer-on-death deed keeps full control with the owner. It can be revoked at any time and the beneficiary gets no present interest, so their creditors and their divorce cannot reach the property. That is the crucial advantage over simply adding a child to the deed, which is the mistake it exists to prevent.
California is a community property state
Yes to both. California is a community property state, and since July 1, 2001 spouses (and registered domestic partners) may hold title as "community property with right of survivorship" under Cal. Civ. Code § 682.1. The vesting must be expressly declared in the deed or transfer document, simply owning something as community property does not create survivorship. On the first death the property passes to the survivor without probate (an affidavit of death of spouse is recorded, same mechanics as joint tenancy), and either spouse can sever the survivorship right during life the same way a joint tenancy is severed. The tax point that matters: under IRC § 1014(b)(6), when one spouse dies, the entire community property asset, both halves, gets a new cost basis equal to fair market value at death. Joint tenancy only steps up the deceased spouse's half. On a California home bought for $200,000 and worth $1.2 million, community property with right of survivorship gives the surviving spouse a $1.2 million basis (essentially zero capital gain on a later sale), while joint tenancy leaves roughly $500,000 of built-in gain. This is the single most valuable and most-missed move for married California homeowners: it delivers probate avoidance and the double step-up in one line of vesting language. Couples who took title as "joint tenants" decades ago: which was the default that escrow companies used for years: can usually re-vest to community property with right of survivorship, but should confirm with a CPA or attorney first, since the change affects creditor exposure and the character of the property on divorce.
Accounts: the fastest win
Payable-on-death and transfer-on-death designations are available on bank and brokerage accounts in every state including California. They cost nothing, take ten minutes at the branch, do not affect your control of the money while you are alive, and remove the account from probate entirely. If someone reading this only does one thing, this is the one.
The same principle already governs retirement accounts and life insurance, which is why the beneficiary form matters more than the will, a beneficiary designation overrides the will, every time. Review them after every marriage, divorce, birth and death.
After death: the small estate affidavit
None of the above can be done retroactively, but California still has a route. Under Affidavit for Collection or Transfer of Personal Property ("Small Estate Affidavit"), Cal. Prob. Code §§ 13100–13116, the next of kin can collect the decedent’s property without opening probate when:
- the estate is worth $208,850 or less (gross value), and
- at least 40 days have passed since the death, and
- no probate case has already been opened.
Gross fair market value of all of the decedent's real and personal property located in California, measured at date of death, without deducting liens, encumbrances or debts, but excluding the categories in Prob. Code § 13050 (joint tenancy property; life estates and other interests terminating at death; community/quasi-community property passing to a surviving spouse under § 13500; property in a revocable living trust; POD/TOD and multiple-party account sums passing to survivors or named beneficiaries; registered/titled vehicles, vessels, manufactured/mobile homes, commercial coaches, truck campers and floating homes; unpaid Armed Forces compensation; and up to $20,875 of unpaid salary/compensation including unused vacation). Note the cap counts real property toward the total even though the affidavit itself cannot transfer real property.
Full detail, including who may sign and where to take it, is on our California small estate affidavit page.
The middle option most families miss
Yes: and California's middle option changed dramatically for deaths on or after April 1, 2025, which almost no one has caught up with. There are three tiers between "do nothing" and full probate. Tier 1. Small estate affidavit for personal property, Prob. Code §§ 13100–13116. No court at all. Wait 40 days after death, sign a declaration under penalty of perjury, hand it to the bank or broker. Gross value ceiling: $208,850 for deaths on or after April 1, 2025 ($184,500 for deaths April 1, 2022–March 31, 2025; $166,250 before that). The base figure in the statute is $166,250, adjusted every three years by the Judicial Council under Prob. Code § 890, the next adjustment is April 1, 2028. Tier 2. The middle option most families miss: petition to determine succession to real property, Prob. Code §§ 13150–13158, Judicial Council Form DE-310. This is court-supervised but radically simplified: no personal representative is appointed, no letters issue, no formal creditor claim period, no inventory by a personal representative in the ordinary course, and, critically. No statutory percentage attorney or executor fees. It is one petition, one hearing, one court order that vests title. AB 2016 (2024) rewrote § 13151 for deaths on or after April 1, 2025: the petition now covers the decedent's primary residence in California valued up to $750,000 gross (previously the real property limit was the same small $184,500 figure, which in California real estate meant it was useless). You must wait 40 days after death, and within five business days of filing you must deliver notice of the petition to each heir and devisee. This one change moved an enormous number of ordinary California homes out of full probate: but only the primary residence qualifies, and only for deaths on or after April 1, 2025. Tier 3. Spousal or domestic partner property petition, Prob. Code §§ 13650–13660, Form DE-221. No dollar limit whatsoever. If property passes to a surviving spouse or registered domestic partner: whether by will, by intestacy, or because it is community property: the survivor files one petition and gets one court order confirming title, typically in six to ten weeks, with attorney fees negotiated hourly or flat rather than by the statutory percentage. A $3 million estate passing entirely to a spouse can clear on this petition. Separately, Prob. Code §§ 6600–6615 allow the whole estate to be set aside to a surviving spouse and minor children with no administration at all when the net estate (after liens, encumbrances, and any probate homestead) does not exceed $107,900 for deaths on or after April 1, 2025 ($95,325 for deaths April 1, 2022–March 31, 2025). And within full probate, the Independent Administration of Estates Act (Prob. Code § 10400 et seq.) lets the personal representative sell property, pay claims, and act without a separate court order for most steps. It does not shorten the timeline much but it reduces the number of hearings.
If the estate is over the affidavit limit, ask the probate court clerk about this before assuming you face the full process. Clerks cannot give legal advice, but they can tell you which procedures exist and hand you the forms.
Common mistakes in California
- Assuming a will avoids probate.It doesn’t. It directs probate. This is the most common misconception in the whole subject.
- Adding an adult child to the deed.It does avoid probate, and it also exposes the property to that child’s creditors and divorce, may trigger gift-tax reporting, and can cost them the step-up in basis. A transfer-on-death deed achieves the same result without any of that.
- Paying for a trust and never funding it. A trust only governs assets actually retitled into it.
- Stale beneficiary forms. The form beats the will.
- Overestimating the estate after a death. Families routinely count the jointly-held house, the 401(k) with a named beneficiary and the POD savings account, conclude they are over the limit, and pay for probate they never needed.
- Filing probate before checking. In most states, once a personal representative is appointed the affidavit route closes permanently. The reverse is not true, so check first.
Worth knowing in California
The biggest one. Proposition 19 property tax reassessment. Avoiding probate does not avoid reassessment, and this is where California families lose the most money. For transfers on or after February 16, 2021, the parent-to-child exclusion from property tax reassessment (Cal. Const. art. XIII a, § 2.1) is drastically narrower than the old Proposition 58. The child must (a) make the inherited home their own principal residence and file for the homeowners' or disabled veterans' exemption within one year of the transfer, and (b) the exclusion is capped at the parent's existing taxable value plus $1,000,000, biennially adjusted ($1,044,586 as of February 2025), value above that cap is added to the new taxable base. The BOE-19-P claim must be filed within three years of the transfer or before a sale to a third party, whichever comes first. Practical effect: a child who inherits mom's Bay Area house with a $1,800 annual property tax bill and rents it out, or keeps it as a second home, gets reassessed to full market value and can face a $15,000+ annual bill. Proposition 19 also killed the exclusion for non-principal-residence property (rentals, vacation homes, commercial) entirely. A TOD deed, a trust, and a joint tenancy all trigger this identically, the mechanism you use to avoid probate has no effect on it. Families must plan for the property tax consequence separately, and often the honest answer is that the house has to be sold. Second: statutory fees are calculated on gross estate value, so mortgage debt does not reduce them. See the cost note. Californians consistently underestimate probate cost because they think of their equity, not their appraised value. Third: the April 1, 2025 threshold changes under AB 2016 are so recent that most law-firm blog posts, county court handouts, and legal-forms websites still quote the old $184,500 real property limit. If a family is told their $600,000 home "has to go through full probate," and the death occurred on or after April 1, 2025, they should specifically ask about the Petition to Determine Succession to Real Property for a primary residence up to $750,000. Fourth: Medi-Cal estate recovery. For deaths on or after January 1, 2017, California limits Medi-Cal estate recovery to assets that pass through probate. That makes probate avoidance unusually powerful here: a funded revocable trust, a recorded TOD deed, or survivorship title all keep the home out of reach of recovery, whereas in many other states recovery reaches the broader estate. Fifth: California has no state estate tax and no inheritance tax, so probate avoidance here is purely about cost, delay, and privacy, not about death taxes. Sixth: a will does not avoid probate. This is the most common single misunderstanding; a will is simply the instruction sheet the probate court follows. Seventh: an unfunded trust is the classic California failure, people pay for a trust and then never record a deed transferring the house into it, and the house goes through probate anyway. Anyone with a trust should pull their deed and confirm the vesting names the trust. A pour-over will plus a Heggstad petition (Prob. Code § 850) can sometimes fix an omitted asset after death, but it is a court proceeding and costs real money. Eighth: unequal joint tenancy between a parent and one child to avoid probate is usually a mistake: it is a taxable gift during life, exposes the home to that child's creditors and divorce, cuts the other siblings out entirely, and forfeits most of the step-up in basis. Ninth: for personal property, California allows a Payable-on-Death designation on bank accounts and Transfer-on-Death registration for securities (Prob. Code § 5500 et seq. for nonprobate transfers; §§ 5500–5512 for TOD securities registration), and DMV allows a TOD beneficiary designation on a vehicle title: small, free steps that quietly remove assets from the probate count and can drop an estate under the $208,850 affidavit ceiling.
Sources
Common questions
Has someone already died in California?
Then the useful question is whether the estate qualifies for the affidavit route. Two minutes, free.
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