Understanding when a will must go through probate in California — and when it may avoid it — can help reduce costs, prevent delays, and streamline the estate administration process.
Probate is often a process many people try to avoid because it can be costly and may delay beneficiaries from receiving their inheritance for months or even years. However, for many estates in California, there is no way to transfer decedents’ assets without it.
While certain estates, assets, and circumstances may qualify to bypass a formal court-supervised probate process, most wills require some type of probate proceeding before assets can be distributed according to their terms.
Consider the following examples to understand when probate may be required:
- A decedent dies with a will and solely owned assets valued over $1 million. → Formal probate administration is likely required
- A decedent dies with a will and trust. The probate estate consists only of personal property valued under $100,000, while the trust holds all major assets, including real property. → A simplified probate procedure may be available
- A decedent dies with a will leaving all assets to a surviving spouse. The total estate is valued at $500,000. → A simplified probate procedure may be available
- A decedent dies with a will, and the estate includes $150,000 in cash and a primary residence worth $500,000. → Simplified probate procedures may be available
- A decedent dies with a will but leaves no probate assets because all property passes by beneficiary designation or joint ownership. → Probate may be avoided, though the will is typically still lodged
As these examples show, whether probate is required, or whether a simplified court procedure may be used, generally depends on the total value of the estate, the type of assets involved, how assets are titled, and whether spousal rights apply.
While avoiding probate is often a priority for personal representatives and beneficiaries, most probate-avoidance strategies must be put in place during the decedent’s lifetime. After death, the focus shifts to determining whether the estate qualifies for a simplified procedure or requires formal probate administration.
If you are unsure whether probate is required or whether a simplified procedure may apply, an experienced California probate attorney can help guide you through the process and ensure the estate is administered efficiently and properly.
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When Does a Will Need to Be Probated?
A decedent’s will typically needs to be probated if the estate contains probate assets and does not qualify for a simplified probate procedure, such as a Small Estate Affidavit, an Affidavit re Real Property of Small Value, a Petition to Determine Succession to a Primary Residence, or a Spousal Property Petition.
In many cases, probate can be avoided through careful estate planning. However, if a loved one has already passed without implementing probate-avoidance strategies, their will, if one exists, will generally need to be administered through either a formal probate or simplified court procedure.
Estate Contains Probate Assets
Only wills for estates with “probate-able assets” typically require probate administration. However, the existence of probate assets does not automatically necessitate a full probate.
For example, if the total value of probate assets is $50,000, the estate may qualify for a simplified probate procedure rather than a formal probate administration.
For an asset to be considered a probate asset, it must:
- Be solely owned by the decedent at the time of death;
- Not be held in a trust;
- Not pass by beneficiary designation; and
- Not pass by right of survivorship.
For example, a decedent may create a will as a “backup” estate planning document in case certain assets are not successfully transferred into their trust before death. However, if all assets are properly transferred into the trust, and no probate assets remain, both formal and simplified probate procedures may be avoided entirely.
In these types of cases, the will is still typically lodged with the court after death if it is in someone’s possession, even though it ultimately may not be used in a probate proceeding.
Estate Is Not Eligible for Simplified Probate Procedures
Wills for estates that do not qualify for simplified probate procedures will generally require a formal probate.
Even when an estate does qualify for a simplified procedure, those procedures are optional in some cases. For example, if a will contains ambiguous language that requires court interpretation, or if the estate involves significant debts or potential disputes, the executor may choose to proceed with a formal probate to ensure proper administration and avoid personal liability.
Depending on the type and value of the estate, California law provides several simplified procedures that may allow certain personal property, qualifying real property, or property passing to a surviving spouse or registered domestic partner to be transferred without a full probate administration.
What Simplified Probate Procedures Are Available in California? | |||
Simplified Probate Procedure | Who May Use It | How It Works | Rules and Requirements |
The gross value of the decedent’s real and personal property in California — excluding any property described in Probate Code section 13050 and any property included in a petition filed under Probate Code section 13151 — must not exceed $208,850 for deaths on or after April 1, 2025. | Successors present the signed affidavit to the individual or institution holding the property, such as a bank or brokerage. |
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The gross value of all real property in the decedent’s estate located in California – excluding any real property described in Probate Code section 13050 — must not exceed $69,625 for deaths on or after April 1, 2025. | Successors file the affidavit with the court and submit a probate referee appraisal of the property. Once approved, the court order or affidavit is recorded with the county recorder to transfer ownership of the property. |
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The gross value of the decedent’s primary residence in California must not exceed $750,000 for deaths on or after April 1, 2025. | Successors file a petition with the court seeking an order transferring title to the decedent’s primary residence. |
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This petition is reserved for surviving spouses and registered domestic partners seeking to confirm or transfer ownership of property that passes to them by will or intestate succession, or as community property or quasi-community property. | Surviving spouses or domestic partners file a petition requesting the probate court to confirm the transfer of property without opening a formal probate. |
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It is important to note that while simplified probate procedures can streamline the transfer of a decedent’s assets, they do not eliminate the estate’s financial obligations. In most cases, successors must confirm under penalty of perjury that debts, taxes, and other liabilities have been addressed before assets can be transferred.
Why Does a Will Go Into Probate?
In California, a will may need to go through probate so the court can authenticate it and authorize the transfer of estate assets to beneficiaries according to its terms. A will does not, by itself, give the executor legal authority to transfer property.
That said, not all wills go through formal probate. When an estate qualifies for a simplified probate procedure, the will is still typically lodged with the court, but assets may be transferred through petitions, sworn affidavits, appraisals, or other supporting documentation rather than full court-supervised administration.
When formal probate of a will is required, it serves several important purposes, including:
- Validating the will. The court confirms the document is the decedent’s valid last will and testament, reflects the decedent’s true intentions, and was properly executed.
- Handling debts and taxes. Probate provides a process for creditor claims and ensures the decedent’s financial obligations are resolved.
- Authorizing asset transfer. The executor is given legal authority to transfer assets from the decedent’s name to estate beneficiaries.
- Resolving disputes. The court provides a legal forum to address will disputes and conflicts among beneficiaries, heirs, creditors, and the executor.
While probate can feel time-consuming and costly, court supervision can help resolve disputes and complications more efficiently. For that reason, although many people aim to avoid probate, it can serve an important protective function during the estate administration process.
What Happens if a Will Must Be Probated?
In California, if a will must be probated, the estate generally goes through a court-supervised probate process designed to authenticate the will, appoint a personal representative, pay outstanding debts and taxes, and distribute the remaining assets to beneficiaries.
Here are the steps typically involved in probating a will in California:
- Will is lodged with the court
The individual in possession of the decedent’s original will (known as the custodian) is generally required to lodge the will with the probate court within 30 days of learning of the decedent’s death, even if it is not yet clear whether a formal probate will be necessary. - Petition for probate is filed
If formal probate is required, the executor named in the will (or another interested party if no executor is available) must file a petition with the court requesting that the will be admitted to probate and that a personal representative be appointed. The nominated executor does not have authority to act on behalf of the estate until they are formally appointed. - Beneficiaries, heirs, and creditors are notified
The proposed executor must provide formal notice to beneficiaries, heirs, and known creditors that a probate case has been opened at least 15 days before the initial hearing. Notice of the hearing is also generally published in a local newspaper in accordance with Probate Code section 8121. - Probate hearing takes place
At the hearing, the judge reviews the will and any objections to its admission. If the court determines the will is valid and properly executed, it is admitted to probate. The court then appoints the executor (if appropriate) and issues Letters Testamentary or Letters of Administration, granting them legal authority to administer the estate. - Estate inventory and appraisal are prepared
The executor identifies, secures, and values estate assets. Certain assets must be appraised by a probate referee. An inventory of all assets and their values as of the date of death is then prepared and filed with the court and served to interested parties. - Debts, taxes, and expenses are paid
The executor is responsible for paying valid creditor claims, taxes, and administration costs. No distributions may be made to beneficiaries until these obligations have been satisfied. - Accounting or status report is filed
If the estate remains open beyond one year, the executor is typically required to file an accounting or status report with the court explaining the progress of administration and any delays, unless waived by beneficiaries in writing. When the estate is ready to close, a final accounting and petition for final distribution are filed. - Assets are distributed according to will
Once the court approves the final accounting and distribution plan, the executor distributes the remaining assets to the beneficiaries according to the terms of the will. Receipts or releases are often obtained to document when beneficiaries were provided their inheritance. - Estate is closed
After all assets have been distributed, the executor files a petition for final discharge. Once approved by the court, the estate is formally closed and the probate process is complete.
While probate can feel complex and time-consuming due to the number of required steps and ongoing court involvement, a probate attorney can help ensure the process is handled correctly and efficiently. Legal guidance can also help minimize the risk of errors or personal liability for the executor and help ensure beneficiaries receive their rightful inheritances.
When Does a Will Avoid Probate in California?
In California, a will typically can only avoid a formal probate if the estate qualifies for simplified probate procedures or consists entirely of assets that pass outside of probate.
It’s important to remember that the existence of a will, on its own, does not mean probate is required. A will often serves as a set of instructions for what should happen after death rather than a document that controls the distribution of all assets.
For example, a decedent may execute a will primarily to help identify assets or clarify intentions, even when those assets pass outside of probate.
Below is a summary of when a will or estate may avoid probate in California:
- The estates has a gross value of $208,850 or less. A Small Estate Affidavit may be used to transfer qualifying personal property without opening a formal probate case.
- The estate contains qualifying real property valued at $69,625 or less. Certain real property may be transferred through an Affidavit re Real Property of Small Value with a court filing, rather than through formal probate.
- The estate contains a primary residence valued at $750,000 or less. A qualifying home may be transferred through a Petition to Determine Succession to Primary Residence instead of a full probate.
- The estate passes to a surviving spouse or registered domestic partner. Certain assets may be transferred or confirmed through a Spousal Property Petition without a formal probate.
- The estate consists of trust assets. Property properly transferred into a living trust during the decedent’s lifetime is distributed according to the trust terms and does not go through probate. However, pour-over wills and testamentary trusts may still require some form of probate administration.
- The estate consists of assets with designated beneficiaries. Assets such as payable-on-death (POD) bank accounts, transfer-on-death (TOD) deeds, life insurance policies, and retirement accounts may pass directly to named beneficiaries without probate.
- The estate consists of jointly owned property with the right of survivorship. Property held in joint tenancy or similar forms of ownership automatically transfers to the surviving co-owner(s) by operation of law upon death.
While estates that meet the above conditions often avoid a formal probate, this is not guaranteed. For example, if a beneficiary challenges a beneficiary designation on grounds such as undue influence or fraud, the asset may become subject to court proceedings and could ultimately be administered through probate.
What Could Go Wrong if a Will Is Not Probated?
There is no legal requirement in California that a will be probated. However, if an estate requires probate and no probate proceeding is initiated, probate assets usually cannot be lawfully administered or distributed to beneficiaries. As a result, the estate may face legal complications, such as remaining unresolved, asset depreciation, or delays.
Regardless of whether probate is ultimately opened, it is necessary for the decedent’s original will to be lodged with the appropriate court. Lodging the document places it in the court’s custody and makes it part of the public record, but it does not authorize the appointment of a personal representative, administration of the estate, or distributions to beneficiaries or heirs.
For a will to have effect, it must be admitted to probate or a simplified probate procedure.
Inheritances Remain in Limbo
When a will is not probated, the court is unable to authenticate it. Beneficiaries typically cannot legally obtain their inherited property without this official clearance. Consequently, estate assets frequently face being frozen, making them inaccessible until probate proceedings begin.
Estate Value Decreases
The total value of an unsettled estate can decline over time if a will is not probated. Shifting market conditions may cause real property to lose worth, whereas bank accounts and investments might incur penalties, inactivity fees, or losses. Furthermore, ongoing expenditures like insurance, property taxes, and maintenance costs will continue to accumulate, ultimately diminishing the inheritance left for beneficiaries.
Will Custodian or Nominated Executor May Face Consequences
Generally, a will’s custodian must lodge the document with the court within 30 days after learning of the decedent’s death. If a custodian willfully fails to do so, they may be held personally liable for damages suffered by individuals harmed by the delay.
By contrast, if the nominated executor fails to seek appointment within the required timeframe, the court may determine that they have waived their right to serve and appoint another qualified individual to administer the estate.
While these deadlines are important, they are not always strictly enforced in every circumstance. For example, a nominated executor who files for probate after 30 days has passed is not automatically disqualified from serving. The court may consider the circumstances surrounding the delay when determining whether to proceed with the appointment.
Whether you are a custodian or named executor, taking prompt action after learning of the decedent’s death can help avoid unnecessary delays and complications in the administration of the estate.
Debts Linger Indefinitely
When a will is not probated, there is no legal framework to notify creditors, assess claims, or settle valid debts using estate assets. This leaves outstanding obligations unresolved, creating difficulties for both creditors and beneficiaries.
In some cases, creditors may be forced to initiate probate proceedings on their own to safeguard their rights since claims are time-barred, while beneficiaries won’t be able to receive their inheritance until all legitimate debts are settled.
Is Probate Required if Someone Dies Without a Will?
In California, when someone dies without a will, it results in an intestate estate, which may still be subject to probate. Although formal probate cannot always be avoided completely, simplified probate procedures may be available if the estate meets specific criteria.
While the factors determining whether probate is required are generally identical for both testate and intestate estates, intestate estates are inherently managed differently. This difference arises because there is no will to specify beneficiaries or outline how assets should be distributed.
The primary distinction in handling an intestate estate is the method of distribution: rather than following the express provisions of a will to benefit named individuals, the decedent’s assets are transferred to their legal heirs in accordance with California’s intestate succession laws.
Probating a Will FAQ
Still confused about when a will must go through probate? Explore the frequently asked questions below for additional guidance.
How long does probate take with a will?
In California, formal probate with a will generally spans nine to 18 months, though this timeline varies based on estate size, complexity, and potential disputes. Consulting an experienced probate attorney is the most effective way to obtain an accurate estimate.
When an estate is eligible for simplified probate procedures, the timeline can be dramatically shortened, often permitting assets to be transferred through a single court proceeding or bypassing court involvement entirely.
The presence of a will is often secondary when estimating the duration of probate. While a will can streamline asset distribution by providing explicit instructions and identifying beneficiaries, it can also introduce delays if disputes arise over its validity, unclear provisions, or property ownership.
What if a will is invalid or ambiguous?
When a will is invalid or ambiguous, the probate process provides a way for the court to intervene, allowing it to evaluate the will's legitimacy or provide guidance on unclear provisions.
To challenge a will believed to be invalid, an interested party may object to its admission to probate before or during the initial probate proceeding or, if the will has already been admitted, file a will contest.
If a will contains ambiguous or unclear language, the executor or another interested party may ask the court to interpret its provisions by filing a Petition for Instructions.
Does having a trust always eliminate the need for probate?
No. A trust does not automatically guarantee that probate will be avoided. While a trust is an effective probate-avoidance tool, it works only if the decedent properly transferred assets into the trust during their lifetime. Assets left outside the trust may still require probate unless they pass through another non-probate method, such as a beneficiary designation or right of survivorship.
In some cases, a Heggstad petition may allow assets mistakenly omitted from a trust to be transferred into the trust without probate if there is clear evidence the decedent intended those assets to be trust property.
Can an executor distribute assets without probate?
No. Without going through probate, executors lack the legal authority not only to distribute estate assets, but to access them in the first place. To gain this power, they must be formally appointed by the court and granted Letters Testamentary or Letters of Administration as official proof of their legal authority to represent the estate.
Does personal property need to be probated?
Personal property may need to be probated if it was owned solely by the decedent and does not pass via a trust, beneficiary designation, or other non-probate transfer method.
That said, not all personal property requires a formal probate. If an estate qualifies, successors generally may use a Small Estate Affidavit to collect certain personal property without opening a formal probate case.
Ultimately, whether probate is required for personal property depends on the value of the estate, how the property is titled, and whether a simplified probate procedure or other probate-avoidance strategy applies.
What if the executor ignores the will?
An executor disregarding the terms of a will, whether intentionally or inadvertently, constitutes a breach of fiduciary duty that can expose them to personal liability.
Executors are prohibited from altering a decedent's will, despite having some discretion over estate administration. To prevent allegations of misconduct or ignoring the will, executors who are uncertain about how to interpret specific terms can request court guidance by filing a Petition for Instructions.
Unsure whether a will needs to be probated?
Deciding if a will requires probate can be a complex process. At Keystone Law Group, our skilled probate lawyers are available to review the will and your specific situation to identify the best path forward, which may include determining if the estate is eligible for simplified probate options.
We offer comprehensive support throughout the entire probate process, from the initial filing to final distribution. Whether you are an executor, beneficiary, or heir, our team works to safeguard your interests and promote an efficient administration. Get in touch with Keystone Law today to speak with our legal team.
