After the passing of a loved one, it's important to begin the process of distributing their assets to their heirs or beneficiaries. Unless there are exceptions—such as if the assets are held in a valid living trust or designated Transfer on Death Accounts (TODs)—probate is often required to facilitate this transfer.

What is Probate?

Probate is a legal process administered by a Probate Court. If it sounds scary, don’t worry. The process is detailed and can be complicated, but many people have done it successfully, and so can you. 

The main goals of the probate process in California are: 

1. Determine the existence of a will and validate the existing will
2. Determine the decedent’s heirs and beneficiaries
3. Appoint a Personal Representative to manage the estate
4. Take inventory of asset and calculate how much they are worth
5. Take care of decedent’s financial responsibilities, and pay taxes
6. Transfer remaining assets to the heirs and beneficiaries

Do I Need to Go Through Probate?

A common misconception is that if you have your loved one’s will, you can simply start distributing assets according to its terms without involving a court. Nothing could be further from the truth. A will is simply directions that the decedent has left for the probate judge expressing his or her wishes. It is up to the probate judge to determine what actually happens. 

If you take possession of the decedent’s assets without going through the probate process, you could be prosecuted or held responsible for any losses the estate incurred as a result.

What Assets Do Not Need to Go Through Probate?

1. Any assets placed in a valid Living Trust can simply be distributed by the trustee according to the terms of the trust.
2. Assets in Payable on Death (POD) or Transfer on Death (TOD) accounts held by certain banks and investment firms. This includes most retirement accounts. Beneficiaries must be clearly identified at the institution where these accounts are held. If no beneficiaries are identified, the accounts are part of the probate estate.
3. Life insurance payouts
4. Anything jointly owned with a spouse can simply be transferred to the surviving spouse.

What’s left? For homeowners, likely their most valuable asset, their house, can be probated if it is not transferred to a valid and signed living trust before death.

After the probate assets have been identified, there is a threshold inquiry – if all of the probate assets are worth less than $184,500 (as of 2024), you do not need to go through the probate process. The decedent’s assets can be transferred through a simplified process at the probate court in the county where the decedent resided at the time of death. Check with that court for more information. 

What if My Loved One Died Without a Will or Trust?

When an individual passes away without leaving a valid will or trust, they are considered to have died "intestate," necessitating the probate process. In such cases, rather than a will specifying the distribution of their property, the State of California's intestacy laws dictate how the estate is divided. This process, known as "intestate succession," establishes a predefined order of inheritance based on state regulations, rather than the decedent's personal wishes.

Estimates vary, but only roughly 1 in 3 people in America do any estate planning at all, so intestacy is unfortunately common. 

How Much Does Probate Cost?

In California, probate fees are governed by state law and can encompass a range of expenses, including court fees, executor's fees, property appraisal costs, certified document copies, accounting fees, legal fees. If you engage an attorney, these costs typically range from 4% to 7% of the total estate value. You can reduce these costs by undertaking the probate process yourself, but it could also consume a year or more of your personal time.

NOTE: Should a Will be contested or if there are disputes among beneficiaries regarding the distribution, the costs may escalate significantly, and the resolution could take years.

For a more precise estimate of attorney and executor fees, you can use our California probate fee calculator. 

How Long Does Probate Take?

In practice, it takes roughly 18 months to complete the probate process. Longer when mistakes are made or courts are busy, shorter for simpler estates. 

What’s Next?

The full details of the probate process are beyond the scope of this overview. For comprehensive guidance and personalized assistance, contact Mansoor Law Firm today. Our team is equipped with the expertise to guide you through what can be a complex and emotional process following the loss of a loved one.

Please fill out the form below, email us at info@mansoorlawfirm.com, or call (805) 900-7850. We will respond to your inquiry within 24 hours.