Do I need to go to probate in California? How do I navigate the probate court in California? What threat does probate pose to an estate? How much does probate cost, and how long does it take?
By James L. Cunningham Jr., Esq.
Probate is a threat to your estate. When most people think about Estate Planning, they assume a Will is enough. It isn’t. In California, a Will is a one-way ticket to Probate Court. And if you die without a plan, the state decides who gets your assets. Spoiler: it may not be the people you actually want.
Most people assume probate is just a little paperwork when someone dies. Wrong. Probate is a court-controlled, expensive, drawn-out nightmare that can shred families, chew up inheritances, and drag anyone’s personal and financial life into the spotlight.
Let’s break down the probate threat using a famous example, take a hard look at California’s supposed shortcuts, point you to the steps of probate, and understand why a Living Trust is the smarter move.
Prince’s Estate Disaster: How Probate Fees Destroyed $156 Million
Prince had a $156 million estate. No Will. No Trust. Forty-five people showed up claiming to be relatives. His siblings burned $3 million fighting off false claims and in other legal fees. They had to settle an $84 million tax bill and racked up $45 million in legal fees. Six years and 2,700 court filings later, the family was left with a fraction of what should have been their generational wealth.
That’s what probate does. It eats up time, money, and sanity.
Not sure where your estate stands? Contact CunninghamLegal today by calling us at (866) 988-3956 or clicking here to set up a free initial call with a client specialist.
Probate Explained: What Is Probate and Why It’s a Trap
Probate is the court-supervised process that can kick in after someone dies owning assets in their name. It can only be avoided in certain circumstances, depending on spousal rights, assets in Living Trusts, or Payable on Death accounts, and so forth. The court makes sure debts and taxes are paid, then decides who gets what’s left. If there’s a Will, the judge validates it—but the judge ultimately decides what happens. If there isn’t a Will, state intestacy laws decide. Either way, you’re in probate.
Surviving spouses are often, but not always, able to avoid probate in California, even if there is no Living Trust. But situations are complex, and surviving spouses should consult a lawyer on their rights and responsibilities after a loved one passes.
Here’s what makes probate a trap:
- It’s slow: California Probates drag on 12–24 months, sometimes longer. Your heirs wait years for access to assets they may desperately need.
- It’s expensive: Probate fees are based on gross value, not net. A $1 million home with a $900,000 mortgage is still treated as a $1 million estate. Statutory fees alone are $46,000—split between the attorney and the executor. That’s before paying creditors or court costs.
- It’s public: The Will, the list of assets, creditor claims, even family disputes—all public record. Scammers and nosy neighbors can see exactly what your estate is worth.
- It’s creditor-friendly: Probate requires official notice to creditors, which is like ringing the dinner bell. Even shady or long-forgotten claims must be addressed before heirs see a dime.
The Steps of Probate in California
The probate threat cannot be dispensed with in one court hearing. It’s a multi-step compliance exercise run by the court. Miss a step and you’re looking at delays, sanctions, or even being removed as executor.
Please see this page for a detailed overview of the major events in a California Probate.
On paper, these major steps look orderly. In practice, they stretch out for 12–24 months, involve stacks of forms, and keep your family in limbo. One mistake — a late inventory, a missed notice, a botched creditor claim — and the case stalls. That’s why I call probate a trap.
When Does an Estate Have to Go to Probate in California?
A common question people ask is: when does an estate have to go to probate in California? The answer depends on the type and value of assets.
In California, probate is generally required if assets are not held in a Living Trust, and:
- There is no surviving spouse with full rights to the estate.
- The decedent owned a primary residence, worth above $750K.
- The decedent owned any real estate that was not their primary residence (like a rental)
- The total estate value is over $208,850 (for deaths after April 1, 2025).
- Assets don’t pass automatically by proper beneficiary designation at an institution (like life insurance, IRAs, or retirement accounts).
- Assets weren’t properly transferred into a Living Trust.
If these apply, Probate Court is the only way to transfer legal ownership of the property. Without it, heirs can’t sell the house, transfer the title, or access accounts.
California Probate Shortcuts: Small Estate Affidavit and Petition to Determine Succession
California does provide limited Probate shortcuts, but they only apply in specific situations.
The Small Estate Affidavit
- Available if the estate’s value is under $208,850 (as of April 2025).
- Applies only to personal property (bank accounts, cash, vehicles, jewelry, stocks).
- Does not apply to real estate.
- Must wait 40 days after death before using it.
- Cannot be used if a probate case is already open.
This affidavit is helpful for smaller estates, but it falls short if the person owned a home or other real property.
Petition to Determine Succession to Real Property
A Petition to Determine Succession to Real Property is a streamlined California court process for transferring real estate from a deceased person to their rightful heirs or beneficiaries, bypassing a full, costly probate case. This petition is available for estates where the total value of assets is under a certain threshold and is often used for smaller estates, such as a single home or vacant lot. To use this process, all known legal heirs must typically sign the petition, which asks the court to declare them the new owners of the property.
- On April 1, 2025, this shortcut applies to a primary residence valued up to $750,000.
- It does not apply to rentals, vacation homes, or raw land.
- Uses fair market value, not equity, so even a heavily mortgaged home may exceed the limit.
- Still requires court filings, notice to heirs, an appraisal, and a hearing.
In other words, it’s a lighter version of probate, not a way around it. And in California’s high-priced housing market, many families exceed the $750K limit anyway.
If the estate is over the Probate threshold or involves real estate, the case may go to Probate Court, especially if assets aren’t in a Living Trust. Shortcuts like the Small Estate Affidavit or Petition to Determine Succession help in limited cases, but they don’t eliminate court oversight.
The surest way to avoid probate in California is to work with a Living Trust attorney to set up and properly fund a Revocable Living Trust. Contact CunninghamLegal today by calling us at (866) 988-3956 or clicking here to set up a free initial call with a client specialist.
Closing Thoughts: Don’t Let Probate Control Your Legacy
Probate in California is not your friend. It’s slow, it’s expensive, and it puts your family’s private business in the public record. Yes, as noted above, there are shortcuts — but those are narrow fixes that fail most families, especially in a state where home prices often blow past the limits.
The truth is simple: Only having a Will likely guarantees Probate; a properly drafted, fully funded, and executed Living Trust can avoid it. A properly funded Revocable Living Trust, drafted with the help of a knowledgeable living trust attorney, is the most reliable way to keep your estate out of court, protect your heirs, and make sure your wishes are carried out.
If you’re reading this because you’ve just lost someone and are already in Probate, you know the pain firsthand. If you’re planning ahead, you still have time to save your family from this process.
What We Do
The lawyers and staff at CunninghamLegal help people plan for some of the most difficult times in their lives; then we guide them when those times come.
Our experienced legal team specializes in Estate Planning, Tax Planning, Business Law, and Asset Protection to help protect your wealth and legacy for generations to come. With offices across California, we offer in-person, phone, and Zoom consultations to make expert legal guidance accessible wherever you are.
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Ready to take the next step? Call us at (866) 988-3956 or schedule an appointment online.
We look forward to working with you.
Warm regards, Jim
James L. Cunningham Jr., Esq.
Partner, CunninghamLegal
At CunninghamLegal, we guide savvy, caring families in the protection and transfer of multi-generational wealth.
