Starting the probate process in California

What to know to initiate probate in California

• California has its own rules for probate that you'll need to be familiar with if your loved one lived there.

• If the estate’s value is less than $184,500, you may be able to go through a simplified probate process for small estates.

• California requires that the will be filed in state court within 30 days of your loved one's death.

• Barring complications or extensions, probate in California must be completed within one year of the executor's appointment.

The most important thing to know about probate, the legal process that results in the transfer of assets after someone dies, is that it is handled by courts on the state level. Thus, probate is a little bit different state to state, depending on how the laws are written.

If your loved one passed away in California, then you will need to follow California’s probate court laws. While California’s probate process is not exceptionally complicated, knowing what makes it unique will help you avoid mistakes that cost you time and money.

Keep in mind that some details will depend on which county you are in, but generally, California’s probate process is not exceptionally complicated. As always, it’s encouraged to consult a probate lawyer at any point to make sure you’re on the right track.

Small vs. large estates

In California, estates worth more than $184,500 usually have a different probate process than estates of lesser value. Under that dollar amount, it is considered a small estate, and you may be able to settle your loved one’s financial affairs using California’s simplified process for small estates. 

Keep in mind, when you are calculating the value of your loved one’s estate, certain assets are not counted toward the total, such as real estate owned outside of California, assets that were placed in a living trust, joint tenancy property, and payable-on-death accounts.

Once you’ve determined whether the estate qualifies as a small estate, the executor of the estate can file a written request asking to use the simplified small estate probate process. 

There is a 40-day waiting period, and if the request is granted, the court allows you to bypass the full probate process to distribute your loved one’s assets. 

Another option is the small estate affidavit, a process to quickly transfer specific assets that you stand to inherit, as opposed to the entire estate. Any beneficiary can initiate it, whether you are the executor or not. 

You’ll need to submit a notarized small estate affidavit in court—along with documents like the death certificate, proof of your loved one’s ownership, and others—for permission to transfer them to you.

If your loved one’s estate is larger than $184,500, you’ll have to go through the full probate process—a longer, more involved series of tasks. First on the list: filing the will in court.

Important deadlines to remember

Once you confirm that your loved one’s estate needs to go through full probate, the executor will have to file the will in probate court. Keep in mind that California law requires that the will be filed within 30 days of your loved one’s death.

If the executor fails to file within that time frame, they could potentially lose their position as executor and a new person will be appointed.

While California state law says that the executor must complete the probate process within one year of their appointment (usually months after the date of death), the process realistically can take several months more, especially if there are delays or complications.

All you have to do if you need more time is ask the court for an extension, however, so there’s no need to stress about this yet.

Where and how to file for probate

Probate must be initiated in the county where your loved one resided. Look up the Superior Court in that county, and find out where the Probate Department is located.

To officially begin probate, the executor, administrator, or any family member (but ideally the executor) becomes, in legal terms, the probate petitioner and files the will along with California Form DE-111, also known as the Petition for Probate, with the court.

There is a filing fee of around $435—some counties charge slightly more. This should be fairly straightforward as the court clerk will walk you through these steps, but make sure to arrive prepared to receive and sign a lot of paperwork.

Some of the forms you will need to fill out will later be signed by the judge, so this would be a good juncture at which to check in with a probate lawyer to make sure you are filling everything out correctly. Any errors made in the beginning could cause problems and delays down the road.

Once you’ve filed the will and the initial paperwork, the probate clerk schedules a first probate hearing, usually within one or two months. You will receive further instructions from the court, and from there you’ll be on your way to being officially appointed the executor.

Of course, the specifics of initiating probate will differ from county to county and from family to family, depending on the size and nature of the estate.

No matter where you are serving as executor for a loved one’s estate, it can be a daunting responsibility while dealing with grief and beginning a new life without the person you loved. Thankfully, the general process is quite straightforward in California. So you can, as quickly as possible, honor your loved one by fulfilling the duty they entrusted to you.

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