Probate Process | Legal Process to Transfer Assets

Navigating the probate process in Santa Clara County can feel overwhelming, especially when real estate must be sold during estate administration. This guide explains the California probate process, executor responsibilities, probate timelines, costs, and how probate home sales work from start to finish.

The information provided below pertains to Santa Clara County, California.

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Probate Process

 

The formal probate process generally begins after a person dies and someone files a Petition for Probate with the Superior Court.

Although every estate is different, probate administration in Santa Clara County generally involves the following steps:

1. Prepare and file the Petition for Probate. The person seeking appointment as executor or administrator files the petition, along with required documents and the decedent’s Will, if one exists. Many petitioners hire a probate attorney to assist.
2. Provide notice of the hearing. Notice must be given to the heirs, beneficiaries, and other persons entitled to notice, generally at least 15 days before the hearing.
3. Publish the required notice. The Notice of Petition to Administer Estate is published in a qualifying newspaper, following California’s publication requirements. Proof of publication and proof of service must be filed with the court.
4. Attend the probate hearing. The court considers the petition, addresses any objections, and determines whether to appoint the proposed executor or administrator.
5. Obtain Letters Testamentary or Letters of Administration. Once appointed and after completing applicable requirements, including any required bond, the personal representative receives Letters establishing their authority to administer the estate.
6. Identify and safeguard estate assets. The personal representative locates, protects, and manages estate property, including real estate, financial accounts, and personal belongings.
7. Prepare the Inventory and Appraisal. Generally, the personal representative must file the Inventory and Appraisal within four months after Letters are issued. Certain assets are appraised by a probate referee.
8. Address creditors, debts, and taxes. The personal representative provides required notices, evaluates creditor claims, pays valid obligations, and handles applicable tax matters.
9. Sell estate property when necessary or appropriate. Real estate may need to be sold to pay debts, satisfy provisions of the Will, or facilitate distribution to beneficiaries. The required procedures depend on the personal representative’s authority.
10. Petition for final distribution. Once administration is sufficiently complete, the personal representative files the appropriate accounting or waiver, report, and petition requesting court approval to distribute the remaining estate assets.
11. Distribute assets and close the estate. Following the court’s order, the personal representative distributes the estate property and completes the remaining steps to close administration.

How long does probate take?

Under California Probate Code §12200, the personal representative generally must file either a petition for final distribution or a report on the status of administration within one year after Letters are issued. If a federal estate tax return is required, the period is 18 months.

These are reporting deadlines, not guarantees that probate will be completed within those timeframes. Complex estates, disputes, property sales, and court scheduling can extend the process.

 

 

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The Cost of Probate

The cost of probate varies depending on the value and complexity of the estate. California law establishes statutory compensation for probate attorneys and personal representatives (executors or administrators), calculated as a percentage of the gross value of the estate accounted for by the personal representative. Additional expenses and extraordinary fees may also apply.

For detailed information, please see How Much Does Probate Cost in California?.

 

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Probate Process | Administration

An executor or administrator must generally be at least 18 years old and legally qualified to serve. California law establishes additional eligibility requirements, including certain restrictions affecting non-U.S. residents seeking appointment as administrators. A person named as executor in a Will may qualify under different rules.

The probate court oversees estate administration, but the executor or administrator is responsible for managing the estate’s day-to-day affairs. Some actions require court approval, depending on the authority granted to the personal representative. Court approval is generally required for statutory compensation, final distribution, and closing the estate.

The executor or administrator has many duties and responsibilities. Among them are:

• Identify, locate, safeguard, and manage the estate’s assets.
• Determine whether real estate or other assets need to be sold.
• Collect money owed to the decedent, including unpaid salary, interest, dividends, or other income.
• Open a separate estate bank account and maintain accurate financial records.
• Identify beneficiaries and heirs and determine their interests under the Will or applicable law.
• If there is no Will, identify the decedent’s legal heirs under California’s intestate succession laws, Probate Code §§6400–6414.
• Prepare the required Inventory and Appraisal and obtain appropriate valuations of estate assets.
• Provide legally required notices to creditors.
• Review creditor claims and pay valid debts in accordance with California probate law.
• Maintain appropriate insurance and pay necessary ongoing expenses, including mortgage payments, utilities, and property maintenance.
• Notify financial institutions, insurance companies, credit card companies, and appropriate government agencies of the death.
• Arrange for mail forwarding and manage utility services according to the property’s needs.
• File required tax returns and pay applicable taxes.
• Petition the court for final distribution when the estate is ready to close.
• Distribute estate assets in accordance with the court’s order, obtain appropriate receipts, and complete the steps necessary to close the estate.

Real Property Located in Another State

When a decedent owned real property in another state, the laws of that state generally govern how the property is transferred. Depending on how title was held and the applicable laws, an additional probate proceeding, known as ancillary probate, may be necessary.

 

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Are all Estate Assets Subject to Probate?

Not all assets owned by a decedent are subject to probate. Certain assets may transfer directly to beneficiaries or surviving owners without going through the probate process.

Examples include:

• Living trusts: Property properly titled in a living trust generally passes to the trust beneficiaries according to the trust’s terms, without formal probate.
• Retirement accounts: Retirement benefits, 401(k) accounts, IRAs, and Keogh accounts generally pass directly to designated beneficiaries.
• Payable-on-death accounts: Bank accounts with valid payable-on-death (POD) or in-trust-for (ITF) beneficiary designations generally pass directly to the named beneficiaries.
• Jointly owned property: Property held in joint tenancy with right of survivorship generally passes to the surviving joint owner without probate.

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Probate Process | Challenging a Will

Disputes sometimes arise during probate administration. For example, an interested person may challenge the validity of a Will. These disputes, commonly called Will contests, can be costly and time-consuming.

An heir or beneficiary who receives little or nothing under a Will may have concerns about its validity. However, dissatisfaction with an inheritance alone is not sufficient grounds to challenge a Will. A contest must have a legally recognized basis and comply with applicable filing deadlines.

Examples of grounds for challenging a Will include:

• The Will was not properly executed under California law.
• The Will was forged.
• The decedent was subjected to undue influence, fraud, or duress.
• The decedent lacked the mental capacity required to make a valid Will.
• The Will was revoked or replaced by a later valid Will.
• The Will contains a legally significant mistake affecting its validity.

 

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Selling a Probate Home

When an estate does not have sufficient funds to pay its debts, the executor or administrator may need to sell real property to satisfy valid creditor claims. California probate law establishes the priority for paying estate debts and expenses.

Real estate may also be sold to carry out the terms of a Will or facilitate distribution among beneficiaries. Depending on the estate’s financial circumstances, little or no property may remain for distribution after debts, expenses, and taxes are paid.

Notice of Proposed Action

When an executor or administrator has full authority under California’s Independent Administration of Estates Act (IAEA), a probate property sale generally requires a Notice of Proposed Action to be given to persons entitled to notice, unless notice has been properly waived or another statutory exception applies.

If the personal representative has limited authority, a sale of real property generally requires court confirmation. The applicable procedures depend on the authority granted by the court.

Request for Special Notice

An interested person may file a Request for Special Notice to receive notice of specified petitions, reports, accounts, and other matters in the probate proceeding, as provided by California law. This does not automatically mean receiving copies of every document filed with the court.

 

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The Process of Closing Probate

When it is time to close the decedent’s estate, the executor or administrator generally files a final report, accounting (unless properly waived), and petition for final distribution. The court schedules a hearing, and notice is provided to interested persons as required by California law.

A proposed Order for Final Distribution is submitted to the court in accordance with applicable procedures. Once the judge approves the petition and signs the order, the executor or administrator distributes the estate property and remaining proceeds as directed.

The executor or administrator obtains receipts from the persons receiving distributions and files the appropriate receipts or other required documentation with the court.

After completing the required distributions and filing the necessary documents, the executor or administrator may petition the court for final discharge.

The final discharge formally ends the executor’s or administrator’s appointment and releases the personal representative from further duties associated with administering the estate. It does not necessarily protect against liability for prior misconduct or breaches of fiduciary duty.

 

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Estate Administration With Simplified Probate Procedures

California provides several simplified procedures for transferring qualifying estate assets without a full probate administration. Eligibility depends on the type of property, its value, the date of death, and other legal requirements.

Some assets, including real property held in joint tenancy, may transfer outside probate altogether.

Real Property Held in Joint Tenancy

• When a joint tenant dies, the deceased owner’s interest generally passes automatically to the surviving joint tenant through the right of survivorship.
• To update the public record, the surviving joint tenant generally records an Affidavit of Death of Joint Tenant, together with a certified copy of the death certificate, in the county where the property is located. A probate court hearing is ordinarily unnecessary.
• Before recording documents or transferring property, consult a qualified attorney or tax professional about possible property tax reassessment, income tax, and other legal or tax consequences.

 

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Other Assets Held in Joint Tenancy

Certain assets held in joint tenancy with right of survivorship may pass directly to the surviving joint owner without probate.

• Bank accounts: Joint accounts with survivorship rights generally pass to the surviving account holder. Financial institutions typically require a certified death certificate and may request additional documentation.
• Stocks and bonds: Securities registered in joint tenancy with right of survivorship generally pass to the surviving owner. The brokerage firm or transfer agent will explain the documentation required to update ownership.
• Vehicles: Vehicles registered to joint owners may be transferred to the surviving owner through the California Department of Motor Vehicles (DMV). Required documents depend on how the vehicle is titled and the circumstances of the transfer.
• Other jointly owned assets: Whether an asset transfers automatically depends on the form of ownership and applicable California law.

Assets that pass directly to surviving owners or designated beneficiaries generally do not require formal probate administration. However, whether an asset is included when determining eligibility for a simplified estate procedure depends on the specific California Probate Code provisions involved.

Community property also requires separate consideration because ownership and inheritance rights may differ from those associated with joint tenancy.

Before transferring substantial assets, consult a qualified attorney or tax professional about potential legal and tax consequences.

 

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Small Estate Affidavit

California Probate Code §13100 allows qualifying heirs or beneficiaries to collect certain personal property without formal probate when the estate meets the applicable value limit.

The maximum estate values are based on the decedent’s date of death:

• Before April 1, 2022: $166,250
• April 1, 2022 – March 31, 2025: $184,500
• On or after April 1, 2025: $208,850

The basic requirements include:

• The affidavit procedure is used to collect or transfer qualifying personal property, not real estate.
• The estate must meet the applicable value limit, calculated according to California Probate Code requirements.
• At least 40 days must have passed since the decedent’s death.
• The person entitled to receive the property must provide the required affidavit or declaration to the financial institution, agency, or other person holding the property.
• If a formal probate proceeding is underway, additional requirements apply.

For instructions, see the California Courts’ Small Estate Affidavit guide.

For the applicable dollar limits, consult the Judicial Council’s Maximum Values for Small Estate Set-Aside & Disposition of Estate Without Administration (Form DE-300).

 

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Spousal Property Petition

A Spousal Property Petition allows a surviving spouse or registered domestic partner to request a court order confirming or transferring qualifying property without a full formal probate administration.

The petition may involve real property, personal property, or both. It is used to establish the surviving spouse’s or registered domestic partner’s rights to property that belongs to them or passes to them under California law.

When the circumstances are straightforward and the required documentation is complete, the petition may be resolved at a single court hearing. However, additional hearings may be necessary if questions arise about ownership, inheritance rights, or other legal issues.

If the court approves the petition, the judge signs an order confirming or transferring the property as appropriate.

 

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Process for Getting Life Insurance Proceeds

Life insurance proceeds generally pass directly to the beneficiaries named in the policy, without going through probate.

The process for collecting life insurance proceeds typically includes:

• Locate the policy. If the original policy cannot be found, contact the insurance company to obtain the policy information.
• Identify the beneficiaries. Confirm who is designated to receive the proceeds.
• Request a claim form. Contact the insurance company for its required claim forms and instructions.
• Submit the required documentation. This generally includes a completed claim form, a certified copy of the death certificate, and the policy number or other identifying information requested by the insurer.
• Follow up with the insurance company. Additional documentation may be required before the proceeds are paid.

When a valid beneficiary designation names someone other than the estate, life insurance proceeds generally pass directly to that beneficiary rather than becoming part of the probate estate.

If the estate is named as beneficiary, or no designated beneficiary survives, the proceeds may become payable to the estate, depending on the policy terms.

 

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Process for Getting Retirement Benefits

Retirement benefits generally pass directly to designated beneficiaries without going through probate.

• Contact the employer, retirement plan administrator, or financial institution to confirm the benefits, designated beneficiaries, and available distribution options.
• Request the appropriate beneficiary claim forms.
• Submit the completed forms, a certified copy of the death certificate, and any additional documentation required by the plan administrator.
• Consult a qualified tax professional before selecting a distribution option, as tax consequences and withdrawal requirements may vary depending on the type of retirement account and beneficiary.

If the estate is designated as beneficiary, or no eligible beneficiary remains, the retirement benefits may become payable to the estate, depending on the plan terms and applicable law.

 

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California law does not generally require an executor or administrator to hire an attorney to handle probate. However, probate involves legal procedures, court filings, deadlines, and fiduciary responsibilities. Working with an experienced probate attorney can help the personal representative understand and fulfill those obligations.

An attorney may be particularly helpful when:

• The estate includes real property that must be sold.
• The Will is unclear or beneficiaries disagree.
• There are complicated debts, creditor claims, or tax matters.
• Questions arise about ownership, inheritance rights, or court procedures.

Even when an estate appears straightforward, consulting a probate attorney can help determine whether formal probate is necessary and which procedures apply.

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Avoiding Probate Altogether

There are several ways to avoid probate, but a Will alone does not avoid the probate process.

An experienced estate planning attorney can help determine which documents and strategies are appropriate for your circumstances. An estate plan may include a Will, living trust, powers of attorney, and other documents. Property properly transferred into a living trust can generally pass to beneficiaries without formal probate.

Probate and trust administration can be confusing, particularly when real estate is involved. Executors, administrators, and trustees may benefit from consulting an attorney familiar with California probate and trust law.

Probate attorney referrals are available through the Santa Clara County Bar Association. We also work with experienced local probate attorneys and are happy to provide referrals.

To request a referral, call, email, or complete the form on our Contact Us page. We’re here to help you navigate the process.