What to Expect During Probate

What Is Probate?

Probate is a court-supervised process that ensures a deceased person’s assets are distributed according to their will—or, if there is no will, according to state law. It also ensures outstanding debts and taxes are paid before beneficiaries receive their inheritance.

The probate process begins when a will is filed with the court and an executor (personal representative) is appointed. Probate ends once the court issues an order allowing the distribution of assets.

How Does the Probate Process Work?

During probate, the executor must:

• Notify all known creditors and publish a public notice to allow others to file claims. 
• Prepare and submit an inventory of the estate’s assets for court approval. 
• Pay debts, taxes, and court fees from the estate. 
• Distribute the remaining assets to beneficiaries according to the will or state law if there is no will. 

No assets can be distributed until the court approves the final accounting and issues an order.

How Long Does Probate Take?

In California, the probate process takes at least 4 months to allow creditor claims. Most probate cases last between 12 to 18 months before the estate can be fully settled and assets distributed.

If the decedent owned property in multiple states, separate probate cases must be opened in each state, which can extend the timeline.

What Does Probate Cost?

Probate fees in California are based on the total value of the estate and follow a tiered percentage schedule:

• 4% on the first $100,000 
• 3% on the next $100,000 
• 2% on the next $800,000 
• 1% on the next $9 million 
• 0.5% on the next $15 million 
• Court-determined amount for estates over $25 million 

For example:

• $150,000 estate = approx. $5,500 fees 
• $500,000 estate = approx. $13,000 fees 
• $1 million estate = approx. $23,000 fees 
• $10 million estate = approx. $113,000 fees 

These fees cover both the executor and attorney and are typically doubled. Additional costs include filing fees, mailing, and court costs ($1,000–$3,000). Complex cases involving disputes or tax issues can increase fees further.

How Is the Value of Assets Calculated?

California probate applies to estates exceeding $166,250 in total assets or $55,425 in real property. The court values assets at their fair market value (FMV) as of the date of death.

For example, even if you only have $80,000 in equity on a $500,000 home, the probate court considers the full $500,000 value when calculating fees.

What Assets Go Through Probate?

Assets Subject to Probate

• Real estate held solely in the decedent’s name
• Bank and investment accounts solely in the decedent’s name
• Personal property
• Some business interests

Assets That Avoid Probate

• Retirement accounts (401(k), IRAs) with named beneficiaries
• Life insurance policies with designated beneficiaries
• Joint tenancy property with right of survivorship
• Payable-on-death (POD) and transfer-on-death (TOD) accounts
• Property held in a trust 

Why Avoid Probate?

Probate can be costly and time-consuming, reducing the value of the estate passed to heirs. It is also a public process, meaning anyone can access court records and see details about assets and beneficiaries.

However, probate may be necessary or beneficial when:

• The estate involves complex creditor claims or disputes.
• Family dynamics are complicated, requiring court supervision to resolve conflicts. 

How to Avoid Probate

Estate planning can help minimize or avoid probate:

• Use a revocable living trust to transfer assets outside probate while maintaining control during your lifetime. 
• Designate beneficiaries on retirement accounts and insurance policies. 
• Hold property jointly with rights of survivorship. 
• Use payable-on-death and transfer-on-death designations where allowed. 

While having a will does not avoid probate, a properly drafted will can simplify and shorten the process.

Probate is a necessary legal process to settle estates, but it can be lengthy, expensive, and public. Understanding the probate process, costs, and assets involved can help you plan better. Most importantly, proper estate planning is key to protecting your assets and minimizing probate for your heirs.

For personalized advice and estate planning assistance, contact the estate planning team at Naimish & Lewis.