What is probate?
Probate is a court process that transfers a deceased person's property to the heirs. The court appoints a personal representative (an executor if there is a will, an administrator if not). That person pays the deceased's debts and distributes the rest according to the will or the law.
When is probate not needed?
- House in a living trust: the successor trustee manages and sells it, with no court involved.
- Spouses holding title as joint tenants or community property with right of survivorship: the house passes automatically to the survivor; only a recorded affidavit is needed.
- Revocable Transfer on Death Deed recorded with the county while the owner was alive.
- Small estates: California has a simplified procedure for estates below a statutory limit. The limit is adjusted over time; ask an attorney for the current amount.
The steps of probate
- File a petition to open probate in the Superior Court of the county where the deceased lived
- Publish notice in a newspaper and notify the heirs
- First hearing, usually a few weeks to a few months after filing
- The court issues Letters to the personal representative. Only then can they sign documents
- Notify creditors. Creditors usually have 4 months to file claims
- Inventory and appraise the assets (usually with a court probate referee)
- Sell assets if needed and pay debts
- File a final report and ask the court to distribute the estate
The whole process typically takes about 9 months to over a year, longer if there is a dispute.
Statutory probate fees
California sets attorney and personal representative fees by the total value of the estate (including the part still owed to the bank):
| Estate value | Rate |
|---|---|
| First $100,000 | 4% |
| Next $100,000 | 3% |
| Next $800,000 | 2% |
| Next $9,000,000 | 1% |
Example: a $1,000,000 house means about $23,000 in statutory fees for the attorney and $23,000 for the personal representative (if they take a fee), not counting court fees, publication, and appraisal. This is why many people set up a living trust.
Selling the house during probate
You do not need to wait for probate to finish. Once the personal representative has Letters:
With full authority (IAEA)
The personal representative sends a Notice of Proposed Action to the heirs. If nobody objects within the deadline (usually 15 days), the sale goes ahead without court confirmation. Fast and clean.
With limited authority, or when the court requires confirmation
The sale price must be confirmed by the court at a hearing, where others may overbid: the first overbid must exceed the offer by at least 10% of the first $10,000 plus 5% of the remainder. This adds weeks to months.
What the family should do while waiting
- Lock up, re-key if many people have keys, and check the house regularly
- Tell the insurer the owner has passed and the house may be vacant
- Keep paying the mortgage and property tax if possible, to avoid penalties
- Secure valuables: they are estate property too
- Property tax: under Prop 19, if no child moves in within 1 year, the house is reassessed
We buy probate houses as-is, including belongings, and wait on the court's schedule. Selling an inherited house →
This article is general information only, not legal or tax advice. Laws change; ask an attorney or CPA about your specific situation.