A death in the family raises one practical question fast: does this estate have to go through probate court? The answer depends on how the decedent held title to property and how much it’s worth, not on whether a will exists. Left unresolved, it can lock heirs out of bank accounts, block a home sale, or leave nobody with legal authority to act to preserve assets that are being leveraged or charged a fee. Our expert Danville probate attorneys at Barr & Douds Attorneys field this question from Northern California families every week. Here’s when a court case is required, when it isn’t, and what the process actually involves.
What Sends an Estate to Probate Court
California requires probate when someone dies owning property solely in their own name that exceeds a set dollar amount, and has no beneficiary or co-owner ready to receive it. State law sets that line at $208,850 in personal property for deaths on or after April 1, 2025, under Probate Code § 13100 and Judicial Council Form DE-300. Below that figure, a simplified transfer is often available; above it, probate is typically required.
The petition belongs in the Superior Court of the county where the decedent lived, or, for a nonresident, the county where the property sits, under Probate Code § 7051. A petition filed in the wrong county can sit for weeks before it’s transferred to the right court.
Two facts decide the outcome in nearly every estate:
- How title was held: property in a trust, held jointly, or payable to a named beneficiary passes outside probate no matter the dollar amount.
- What it is worth: solely owned property above the statutory threshold needs a probate case; property below it may qualify for a shortcut.
Property That Can’t Skip the Courthouse
- Real estate titled only in the decedent’s name
- A decedent’s share held as a tenant in common
- Bank or brokerage accounts with no payable-on-death beneficiary
- Vehicles, jewelry, and personal property with no other transfer method
- Life insurance or retirement accounts payable to the estate itself
- A solely owned business interest with no succession plan already in place
Property That Never Sees a Courtroom
- Property held in a funded revocable living trust
- Real estate or accounts held in joint tenancy with right of survivorship
- Payable-on-death and transfer-on-death accounts
- Life insurance and retirement accounts with a living named beneficiary
- Property transferred through a small estate affidavit or spousal property petition
4 Shortcuts California Law Allows
State law offers several shortcuts for estates with values below certain thresholds, each with its own form, waiting period, and dollar cap.
The $208,850 Small Estate Affidavit
Personal property valued at $208,850 or less (for deaths between April 1, 2025, and March 31, 2026) or $239,700 (for deaths on or after April 1, 2026) can be transferred using a Small Estate Affidavit without a formal court case, under Probate Code §§ 13100-13116. It can’t be signed until 40 days after death, and only works if no probate case is already open. Once signed under penalty of perjury, it goes directly to the bank or institution holding the asset, which must release it without a court order.
The New Rule for a Family Home
Assembly Bill 2016, signed into law in 2024, significantly raised the threshold for a primary residence to $750,000 (formerly $184,500 adjusted for inflation as of April 1, 2022) for deaths on or after April 1, 2025, under Probate Code §§ 13150-13154. Heirs file a petition on Form DE-310, a probate referee appraises the home, and named heirs get notice before the court rules. It still runs through the court, just faster and cheaper than a full probate.
A Faster Path for Low-Value Land
Real property worth $69,625 or less, such as vacant land or a timeshare, can be transferred by recorded affidavit under Probate Code § 13200, using Form DE-305. No hearing required.
The Surviving Spouse’s Shortcut
A surviving spouse or registered domestic partner can petition for community and qualifying separate property with no dollar cap, under Probate Code §§ 13500 and 13650, using Form DE-221. It applies at any estate size because the property already belongs, in whole or in part, to the spouse under California community property law.
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How Long a Probate Case Really Takes
A formal California probate case takes 9 to 18 months on average, according to the California Courts Self-Help Center. Much of that is fixed by statute, not by court backlog: creditors have four months after Letters issue to file a claim under Probate Code § 9100, and a status report is due around the one-year mark, or 18 months after a federal estate tax return is filed. Contested cases, out-of-state assets, heir disputes, or an operating business extend it further.
The Real Price Tag on Probate
Court and statutory fees follow a formula rather than a negotiated rate.
- Filing fee: $435 to open the case, per Government Code §§ 70650(a), 70602.5, and 70602.6, plus a second fee at closing.
- Attorney and executor fees: each calculated separately on gross estate value under Probate Code §§ 10810 and 10800: 4% on the first $100,000, 3% on the next $100,000, 2% on the next $800,000, and less above that.
- Extraordinary fees: court-approved fees under Probate Code §§ 10801 and 10811 for work beyond routine administration, like selling real property or litigating a claim.
- Probate referee fee: a statutory commission of about 0.1% of appraised non-cash assets, subject to minimum and maximum limits under Probate Code § 8963.
- Publication and certified copies: typically a few hundred dollars combined.
On a $500,000 estate, that’s about $13,000 each for the attorney and executor. On a $1,000,000 estate, it’s about $23,000 each, a combined $46,000 before any distribution to heirs. Extraordinary fees come on top when the estate needs them.
No Will? Here’s Who Inherits.
An estate without a will still goes through probate if the assets meet the criteria above. California’s intestate succession rules, Probate Code §§ 6401 and 6402, determine who inherits: a surviving spouse takes all community property, and separate property is split among the surviving spouse, children, or parents, depending on who survives. Probate Code § 8461 sets the priority to serve as administrator: spouse or domestic partner first, then children, grandchildren, other issue, parents, and siblings.
Inside a Formal Probate Case, Step by Step
A formal case follows the same sequence in every county, though local scheduling and paperwork vary:
- File the Petition for Probate, Form DE-111, in the correct county, and pay the filing fee.
- Mail notice to heirs and beneficiaries and publish notice in a local newspaper for three consecutive weeks.
- Attend the hearing at which the court appoints a personal representative, issues Letters, and sets a bond if required.
- File the Inventory and Appraisal, Form DE-160, with the probate referee valuing anything other than cash.
- Notify creditors using Form DE-157 and resolve valid claims within the statutory four-month window.
- Pay debts, taxes, and expenses from estate funds before distributing to heirs.
- File a final accounting and a petition for distribution, then close the estate once the court approves the accounting.
Each step carries its own deadline, and missing one can set a case back months, which is why most personal representatives bring in an attorney rather than go it alone.
Keeping Property Out of Probate for Good
Most families reduce or eliminate probate with a handful of tools: a funded revocable living trust, beneficiary designations on retirement and insurance accounts, payable-on-death bank designations, and joint titling where it fits. None of these work on their own.
A trust only avoids probate for assets actually retitled into it, and a beneficiary form only works if it stays current after a marriage, divorce, or birth. A trust administration plan built and funded while everyone is healthy is almost always faster and cheaper than probate after the fact.
Find Out Where Your Estate Stands
Whether an estate needs probate depends on a few concrete facts: how the assets were titled, what they’re worth, and whether deadlines like the 40-day affidavit wait or the four-month creditor window have already started running. Guessing wrong can cost a family months of delay and fees that were never necessary in the first place.
Barr & Douds Attorneys has represented Northern California families through probate, trust administration, and estate disputes for over two decades, from Danville and Walnut Creek to communities across Contra Costa County. Contact us to walk through your specific situation and find out whether a full probate case, a shortcut, or no court process at all is the right path forward.
