Your Comprehensive Guide to California Probate Law
Probate is one of the legal processes that follow after the death of a loved one. The process can be challenging and overwhelming, creating more grief and pain for those who lost their loved ones. Regardless, the correct legal steps must be followed when distributing property and assets after the death of a loved one.
While you may want to hire the best lawyer to handle the probate process, understanding the basics can help you make informed decisions.
So, whether you’re a beneficiary or executor of a probate case in the Bay area and Sonoma County or a legal professional looking for a resource to share with your clients, this guide is for you. Here’s everything you need to know about probate law in California probate law.
This guide provides the essentials. For detailed answers to specific questions, see our Probate FAQ: 50+ Questions Answered — California's most comprehensive probate resource.
If you want to avoid probate entirely, explore our Estate Planning FAQ: Complete California Guide covering wills, trusts, living trusts, and probate avoidance strategies.
Schedule your free consultation today, and let us offer the help you need on probate matters.
Sonoma County Probate & Estate Attorney Andrew Kern
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What is Probate Law?
Probate is the legal process that occurs after an individual dies. It involves proving the validity of the deceased person’s will (if they have one), administering their estate, and distributing assets to beneficiaries or heirs.
Probate law is typically the law that governs the probate process. California's probate laws or statutes are passed by the California legislature and attributed to the California probate code.
The court will appoint an executor or administrator to handle the decedent’s assets and pay the bills owed at death.
Not all assets go through probate. Property in a living trust, retirement accounts with named beneficiaries, life insurance proceeds, and joint accounts with right of survivorship bypass probate entirely. This is why many Californians avoid probate through strategic planning.
Learn more: How to Avoid Probate in California.
When and Why is Probate Required in California?
Probate serves several purposes. For instance, it ensures that the deceased’s debts are paid and their assets distributed according to their wishes or California intestate succession laws. Moreover, probate ensures that the entire process is structured and organized. Other benefits of probate in California include;
Ensuring the will's validity: The process validates the deceased person’s will and ensures all their wishes are fulfilled.
Protecting beneficiaries: Probate ensures all beneficiaries named in the will receive their rightful share of the estate or property.
Resolving disputes: The probate process offers a formal approach to resolving conflicts among beneficiaries.
In California, probate is needed when your deceased loved one owned any property in their name at the time of death. This includes vehicles, real estate, stock and bonds, bank accounts, and personal belongings. However, some assets, like those with a named beneficiary or transferred to a living trust, can skip probate law.
However, probate might be avoided in some cases. We shall discuss the ways to avoid probate later in the article.
What if My Estate is Small? Small Estate Affidavit
"If your total estate is under $166,250 (adjusted annually), California law allows your beneficiaries to skip probate entirely using a simple affidavit process. This avoids 12-18 months of court delays and saves thousands in attorney fees.
Most smaller estates qualify for this.
Learn more: Small Estate Affidavit Process
The California Probate Process: Steps and Procedures
The California probate code clearly outlines the steps to be taken for probate. Understanding and following the steps carefully is vital to honor the deceased wishes and the probate law. Here’s how the California probate goes;
Open the probate
The probate process typically begins when a petition is filed with the local probate court. This happens when a person dies and leaves behind a will or an estate. If the deceased didn’t leave a will, the court will assign an administrator to manage the probate process.
Once the court accepts the will, the executor or administrator takes charge of the estate and begins the probate process. Before then, they cannot distribute, discard, or remove any property from the deceased person’s estate.
Sometimes, the decedent’s family or other interested parties may dispute the will. However, the court has the mandate to verify the will's legality. In the absence of a will, the court will identify legal beneficiaries and heirs.
Note that being an executor is quite demanding. However, you can always count on the Law Office of Andrew Kern to help you execute your roles effectively and per California law.
2. Inventory of assets
During this step, the executor will identify and assess the value of the assets that the deceased left behind. This may include personal property, real estate, bank accounts, and other investments. The goal of appraising the assets is to determine their fair market value. The valuation is critical for tax and distribution purposes.
This step can be complex, especially if the deceased had a large volume of assets. Sometimes, the executor may need to consult with a professional appraiser to verify the accuracy of the valuation. Once the valuation is done, the executor must send copies of the inventory to all parties of interest, including the beneficiaries, heirs, and the judge.
3. Paying debts and taxes
If the deceased had any debts or pending taxes, they must be settled before the assets are distributed among beneficiaries. Therefore, the executor or administrator will identify and pay off all debts and taxes owed, including funeral expenses.
Sometimes, this step might involve selling assets to cover liabilities.
4. Asset distribution
Once the executor or administrator settles all debts and taxes, they can distribute the deceased’s assets among beneficiaries and heirs. The distribution follows the deceased’s will or California’s intestate succession laws in the absence of a will.
The court oversees the asset distribution process to ensure it is executed fairly.
5. Closing the estate
Once all assets are distributed fairly, the executor or administrator will file a final account with the court detailing all financial transactions.
The court will then review the transactions and, if satisfied, approve the closing of the estate. This officially concludes the probate process.
According to California law, the executor or administrator has one year from initiating the probate to complete the process. So, you have 12 months to complete the probate process in California. The length can vary based on the complexity of the estate, the presence of disputes, and the court’s caseload. And sometimes, it can exceed the one year stated by the California probate code.
How Long Does This Actually Take?
While California law says probate can be completed in one year, most estates take 12-18 months. Here's why:
Mandatory 4-Month Creditor Notice Period
California law requires you to publish a notice to creditors and wait 4 months for claims. You cannot distribute assets during this time, even if everything else is ready.
Court Backlogs Add 3-6 Months
Sonoma County and Bay Area courts are backlogged. Getting hearing dates, court approval on documents, and final orders takes much longer than the paperwork itself.
Contested Wills Add 6-12 Months (or more)
If anyone challenges the will, probate is paused while disputes are resolved in court. This alone can delay probate a year or more.
Asset Appraisals & Tax Preparation Add 2-4 Months
Professional valuations and tax returns take time, especially for complex estates with real property or investments.
Bottom line: A simple, uncontested estate might finish in 12 months. A complex or contested estate easily reaches 24+ months.
Common Probate Challenges (and How to Overcome Them)
The probate process is not always smooth. Some factors can make the process complex, lengthy, and emotionally taxing. Here are common probate challenges and how you can go about them to complete the process successfully.
Contested wills
A will is contested if a formal objection is raised against its validity. The contestant tries to persuade the court that the deceased wasn’t of sound mind when making the will, didn’t sign it, or was pressured. Contested wills often cause legal battles and delays in the probate process.
So, how do you deal with contested wills?
First, seek mediation to resolve the disputes outside court. Often, the contestant will be a family member, friend, or someone named in the will. Mediation can be faster and less expensive than litigation.
If mediation doesn’t work, you must gather and present strong evidence defending the will’s validity. You must prove that the will was executed correctly and in accordance with California probate law.
An experienced probate attorney firm like the Law Office of Andrew Kern can help you present your interests and guide you through the legal process.
Disputes among beneficiaries
Sometimes, the beneficiaries may disagree on the distribution of the assets. This can cause conflicts, potentially delaying the probate process. But there are several ways to deal with this challenge.
For instance, you can encourage beneficiaries to discuss their concerns and reach a mutually agreeable solution. If disputes persist, the court may need to decide on asset distribution based on the law and the deceased person’s intentions as outlined in the will.
Creditor claims
Creditors may lodge claims against the estate, potentially affecting the distribution of the assets. For instance, some may claim the deceased owed them more than what is stated in the will.
Therefore, as an executor, you must review these claims carefully to determine their validity.
High costs and fees
Probate can be costly at times. The total cost varies depending on things like the estate’s size, your state, and whether or not someone contests the will. Some expenses involved include attorney’s fees, court costs, and appraisal fees.
So, how do you keep costs down?
First, you must plan and budget for these expenses within the estate. Remember, most of these costs are paid from the estates and will potentially reduce the estate’s value.
Additionally, when hiring a probate attorney in Bay Area, it’s important to discuss fees and ensure they are reasonable for the services provided. For instance, at the Law Office of Andrew Kern, we do not charge hefty fees for our services. Our goal is not to benefit from the estate but to help you execute the will as per the law and the deceased person’s wishes.
Complex legal procedures
The California probate process can be intricate, especially if unfamiliar with California probate law. This is why you need to hire an experienced probate attorney like the Law Office of Andrew Kern. We will guide you through the process, ensuring compliance with California probate laws.
Digital Assets & Cryptocurrency
"Many deceased people leave behind digital wealth — cryptocurrency, email accounts, social media, online businesses, cloud storage. Without documentation, these assets are often lost forever.
Example: $250,000 in Bitcoin stored with no documented private keys = permanently inaccessible.
Your executor cannot access email or social media without specific authorization, and tech companies won't help without your formal planning.
Recent California Changes That Affect Your Probate
Proposition 19 (2021): Property Tax Reassessment
Inherited property is now reassessed at current market value. If you inherit a rental property worth $2 million with an old assessed value of $400,000, property taxes jump from $4,000/year to $20,000/year.
Limited exceptions for primary residences.
Learn how Prop 19 affects inherited property →
SECURE Act 2.0: Inherited IRA Changes
The federal SECURE Act 2.0 changed inherited IRA rules. Non-spouse beneficiaries now have 10 years to empty the account (previously could stretch over 30+ years). This creates massive tax bills concentrated over 10 years.
Example: $400,000 inherited IRA = ~$140,000-$160,000 in taxes for a California beneficiary.
How to Avoid Probate in California
As seen above, the probate process can be lengthy and daunting. Fortunately, there are ways to avoid this process after a loved one dies. This might include measures taken by the deceased while still alive. So, if you want to save your family against the probate hassle, here are some tips for you.
Create a living trust
A living trust can help your family bypass the complex and lengthy California probate process for any assets or property that you own. A living trust works similarly to a will and allows you to name someone to take over as trustee after your death.
You will remain the trustee of the trust until your demise. And once you’re gone, the terms of the trust will control the property sharing and ownership. Your successor trustee will be mandated to transfer your properties to the trust beneficiaries without probate proceedings.
All assets placed in the trust, including bank accounts, real estate, and investments, will be distributed to the trust’s terms. This is the most effective way to transfer assets to beneficiaries without court involvement.
However, the process may require guidance from an expert with in-depth knowledge of trust laws. Our probate lawyers in the Bay Area have the expertise to handle all aspects of trust administration.
Joint tenancy with right of survivorship
How you title your property can also help bypass the probate process after you die. For instance, if you own a property jointly with someone, perhaps your spouse, and the ownership includes the “right of survivorship,” the surviving owner, who’s the spouse, automatically takes ownership of the property in case one dies.
Therefore, your loved ones or joint owners won’t need to go through probate. This type of arrangement is commonly used for real estate.
Payable-on-death designations
You can keep specific assets out of probate through payable-on-death designations. This applies mainly to bank and investment accounts. You’ll need to name beneficiaries who will inherit your accounts upon your death. Immediately after your death, the named person can inherit your account and claim funds.
It’s worth noting that you cannot name an alternate beneficiary on a payable-on-death account. However, you can change the account’s beneficiary at any point during your lifetime.
Also, the payable-on-death account can turn into a probate asset if the named beneficiary predeceases you.
Transfer-on-death deeds
You can leave your real estate with a transfer-on-death deed, also called a beneficiary deed. What happens is that you sign and record the deed while you’re still alive. However, the deed only takes effect when you pass away. The named beneficiary has no rights to the real estate until your death—you can still sell the property or revoke the deed.
Which Strategy is Right for You?
The best probate avoidance strategy depends on your situation:
Own a home or real estate? → Living trust is best
High income, significant assets? → Living trust + estate planning for tax efficiency
Blended family? → Living trust with specific provisions to protect both current spouse and prior children
Small estate (<$166K)? → Affidavit process after death
Own a business? → Buy-sell agreement + trust succession plan
Have cryptocurrency/digital assets? → Living trust + digital asset documentation
Don't guess. Get a plan customized to your situation.
Complete Estate Planning Guide →
Schedule a consultation: (707) 658-4602"
When Do You Definitely Need a Probate Attorney?
You need an attorney if:
✓ The estate is contested (Will being challenged)
✓ Beneficiaries are in conflict
✓ Estate exceeds $500,000
✓ The deceased owned property in multiple states
✓ Complex tax situations or high-value assets
✓ Minor children are involved
✓ Blended family with conflicting interests
✓ Digital assets or cryptocurrency need managing
You might NOT need an attorney if:
Small estate under $166,250 (use affidavit process instead)
No disputes among beneficiaries
Clear, simple will
Straightforward asset distribution
Either way, a consultation is wise. An attorney can prevent costly mistakes that affect your family for years.
See the Probate FAQ for 50+ specific questions →
See the Estate Planning FAQ to avoid probate entirely →
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For quick answers: Browse 50+ Probate FAQ questions
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Hire an Experienced Probate Lawyer in the Bay Area Today!
The California probate process can be daunting and lengthy, especially if the beneficiaries and executors don’t understand the California probate law. While you can hire an experienced probate attorney to handle all the legal steps, it’s essential to understand the basics of probate law.
This can make the process smooth for both parties involved. And if you need an experienced probate attorney around the Bay area and Sonoma County, look no further than the Law Office of Andrew Kern. We have what it takes to make the probate process smooth. Schedule your free consultation today!