What is the Probate Process in California?
Simple Probate or Full Probate
The probate process in California depends on certain preliminary factors. In most cases, a California probate can be very costly and time consuming. In the best case scenario, it can be quite easy and inexpensive.
(For more about the basics of probate, read “What is Probate?“)
There are simple probates, generally reserved for small probate estates (i.e., probate estates that are low in value).
There are also full or complex probates, generally for probate estates that contain real property, or those estates valued in excess of $184,500 (This amount is as of 4-1-2022. It is subject to change).
Depending on the county, a full (or complex) probate proceeding can take anywhere from nine (9) months to eighteen (18) months from start to finish. Some counties can take as long as twenty-four (24) months to complete. During this time, assets are stuck and someone can come along to raise an objection or file a creditor claim against the probate estate.
(Note: This blog post is concerned with the kinds of probate processes. It is not concerned with property that transfers “upon death” by right of survivorship, such as property held “as joint tenants.” Joint tenancy property will generally not need to be probated until the last surviving joint tenant has also passed away. Prior to that, however, for so long as there is a surviving joint tenant on title, the joint tenancy property will transfer by operation of law, without the need for probate. But don’t rely on joint tenancy as a probate avoidance strategy. Joint tenancy only delays probate, it is not a full-proof plan to avoid probate.)
Learn more about probate fees in California
Probate Process in California: Simple or Full Probate?
Generally speaking, there are two methods to probate an estate in California1:
(1) the simple process (i.e. probate via affidavits); and,
(2) the full (or complex) process (i.e., probate via court proceeding).
Obviously, the simple probate process (aka the Section 13100 probate) is more preferable for the heirs because it costs a lot less and is much faster than the complex approach.
In order to determine which probate process needs to be used, however, there are a few considerations:
Does the estate include any California real property whatsoever (e.g., real estate, such as land, dwellings, and commercial buildings, as situated in California)? Or is the estate comprised of only personal property (e.g., cash, accounts, personal items, furnishings, collections, jewelry, furniture, clothes, etc.)?
- If the probate estate includes California real property, and if that real property is valued at over $61,500, then a simple probate is out of the question.
- If the probate estate includes California real property, and if that real property is valued at less than $61,500, then there may be a simplified way to transfer that property without the need for full probate.
- If the probate estate does not include real property (e.g. personal property only), and if the estate is valued as less than $20,0002, then the “surviving spouse or minor children” may be able to ask the court to “set aside the estate”. This is much easier and less costly than a full probate proceeding.
- If the probate estate does not include real property, and if the estate is valued at over $20,000, but less than $184,5003, then you can take advantage of the Section 13100 probate (aka the simple probate process). (More on simple probates in a future blog post.)
- Whether it contains real property or not, if the probate estate is valued over $184,5004, a full probate process will be required in order to properly transfer the decedent’s assets to the heirs.
To keep this blog post from getting too long, we won’t be delving into the process of each of these types of probate proceedings here. Stay tuned for a future blog post for that.
As always, it’s best to consult with an attorney before making a decision on any of these topics. This post is not intended as legal advice and should not be used to replace actual legal assistance.
- Please keep in mind, there are detailed rules and many exceptions for each of these topics, so this post should not be construed as legal advice or as being comprehensive on any of the topics. Always consult with a licensed attorney before making decisions which may affect your legal rights. ↩︎
- Subject to change. These amounts change from time to time. ↩︎
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