Probate FAQ

Common Q&A on Probates

What is probate?
When is probate required?
What assets fall outside of probate?
How long does probate take?
Do I need to hire an attorney?
Which attorney should I hire?
How much does probate cost?
What happens if you don’t file probate in California?

What is probate?

Probate is when the court supervises the processes that transfer legal title of property from the estate of the person who has died (the “decedent”) to his or her beneficiaries.

Usually, you have to fill out court forms and appear in court to:

  • Prove to the Court that the Will is valid (this is usually routine),
  • Appoint a legal representative with authority to act on behalf of the decedent,
  • Identify and inventory the decedent’s property, and have that property appraised,
  • Pay debts and taxes, and
  • Distribute the remaining property according to the terms of the Will or to the decedent’s heirs.

(Source: https://www.scscourt.org/)

When is probate required?

With certain limited exceptions, a California Probate is Required when:

  • The Decedent was a California Resident;
  • The Decedent owned property in California;
  • The Decedent has Assets with a value of greater than $184,500 (in 2022):
  • The Decedent has no living trusts;
  • And Assets cannot be passed to the heirs via other right of survivorship, such as Joint Tenancy.
What assets fall outside of probate?

Common examples of assets and property that get distributed without probate include:

  • Property and assets funded into a living trust
  • The remainder of a pension fund or retirement account
  • Life insurance pay outs with designated beneficiary
  • Accounts, securities, and other financial instruments with a transfer-on-death provision
  • Vehicles and properties with a transfer-on-death provision
  • Property co-owned with a right of survivorship
How long does probate take?

California law says the personal representative must complete probate within one year from the date of appointment, unless s/he files a federal estate tax. In this case, the personal representative can have 18 months to complete probate.  Once filing is submitted, timing depends on the case’s complexity and court.  In general, it takes months to years to complete a case.

Do I need to hire an attorney?

In California, you are not required by law to engage an attorney.  You can represent yourself.  However, since the probate process is highly procedural, engaging an attorney specializing in probate is highly recommended.  Any mistake in form submission will cause months or years in court.

Which attorney should I hire?

Not all attorneys handle probate and estate cases.  Therefore, it is important to engage an attorney who is expert in the field.  Furthermore, not all probate attorneys handle litigation.  We work with a network of attorneys specializing in probates and can find the right one for you.

How much does probate cost?

The cost of probate is set by state law. When all the costs are added up – these may include appraisal costs, executor’s fees, court filing fees and certified copies, costs for a type of insurance policy known as a “surety bond,” plus legal and accounting fees–probate can cost from 4% to 7% of the total estate value, sometimes more. If someone contests the Will, there could be thousands of dollars of litigation costs. 

The statutory fee payable to the Executor/Administrator and to the attorney are statutorily defined, meaning all executors/administrators and their attorneys may receive the same fee. Specifically, each party may receive a fee equal to:

4.0% of the first $100,000 in asset value;

3.0% of the next $100,000 in asset value;

2.0% of the next $800,000 in asset value;

1.0% of the next $9,000,000 in asset value;

0.5% of the next $15,000,000 in asset value; and

For estates larger than $25,000,000 in asset value, the fee to the Executor/Administrator is determined by the Court.

Both the Executor/Administrator and his/her attorney can also charge “Extraordinary fees” for services that lie outside of the regular duties of their roles.  These fees usually are based on an hourly rate.

What happens if you don’t file probate in California?

The estate will be frozen and inaccessible to the beneficiaries.  This is because the court uses the probate process to ensure that all debts and taxes are paid off before the estate can be distributed.  All assets, including real assets like bank accounts and properties of the Decedent, will be frozen.

(Source: https://www.scscourt.org/)