California probate is one of the most expensive and time-consuming court processes in the country. On a $1 million estate, mandatory fees alone can exceed $46,000 — before your family receives a single dollar. Here is how a properly designed estate plan keeps your estate out of court entirely.
Most Californians are surprised to learn that probate fees are not based on what your estate is worth after debts — they are calculated on the gross value of assets in your individual name. That means if you own a home worth $900,000 with a $400,000 mortgage, California calculates the statutory fee on the full $900,000.
Under California Probate Code §10810, both the attorney and the personal representative (executor) are each entitled to a statutory fee on the same sliding scale:
| Estate Value | Fee Rate | Attorney Fee | Executor Fee | Combined |
|---|---|---|---|---|
| First $100,000 | 4% | $4,000 | $4,000 | $8,000 |
| Next $100,000 | 3% | $3,000 | $3,000 | $6,000 |
| Next $800,000 | 2% | $16,000 | $16,000 | $32,000 |
| $1,000,000 estate total | $23,000 | $23,000 | $46,000 | |
| Source: California Probate Code §10810. Court filing fees, publication costs, and probate referee fees are additional. Extraordinary fees may also be approved by the court for complex matters. | ||||
These fees are non-negotiable. They are set by law, paid from the estate before any distribution to heirs, and they do not account for the mortgage on your home or any other debt you owe.
Beyond the cost, formal probate in California typically takes 12 to 18 months under the best circumstances. The process requires a mandatory four-month creditor claim period (Probate Code §9100), court-scheduled hearings, and — in high-volume counties like Los Angeles — chronic backlogs that can extend timelines significantly. Your family cannot access or distribute most estate assets until the court closes the proceeding.
California recently updated its simplified estate procedures, and it is worth understanding exactly what those changes do and do not cover.
Effective April 1, 2025, the small estate affidavit threshold (Probate Code §13100) is $208,850 for personal property. Separately, Assembly Bill 2016 allows a primary residence valued at up to $750,000 to be transferred through a simplified court petition rather than full probate.
These are meaningful improvements — but they do not protect most California homeowners. Consider the numbers:
The good news: probate is almost entirely avoidable with proper planning. Here are the tools California estate planning attorneys use, along with an honest assessment of each.
The most comprehensive and reliable probate-avoidance tool. Assets titled in your trust's name pass directly to beneficiaries — no court, no fees, no waiting. A trust also manages your assets if you become incapacitated, which beneficiary designations and TOD deeds cannot do.
Life insurance policies, IRAs, 401(k)s, and bank accounts with payable-on-death (POD) designations pass directly to named beneficiaries without probate. These are powerful — but only cover specific accounts. Retirement accounts and life insurance are most commonly missed during trust planning.
California's TOD deed (Probate Code §§5600–5696) allows a homeowner to transfer one parcel of real estate to a named beneficiary without probate. It is simple and inexpensive, but limited — it covers only one property, does nothing for incapacity planning, and can create complications if the beneficiary predeceases you.
Property held in joint tenancy with right of survivorship passes automatically to the surviving co-owner. This works well for spouses — but it carries real risks, including unintended creditor exposure, capital gains tax consequences, and complications if the surviving owner later needs Medi-Cal.
For most California homeowners and families, a revocable living trust — combined with properly coordinated beneficiary designations — is the most complete and reliable solution. It avoids probate, manages incapacity, and can incorporate planning for Prop 19 and Medi-Cal that no other tool provides.
Even clients with a living trust in place often arrive with an estate plan that will partially — or entirely — fail. The reason: unfunded trusts and misaligned beneficiary designations.
A trust only avoids probate for assets that are actually titled in the trust's name. Real estate is transferred into a trust via a new deed; bank accounts are retitled; investment accounts are re-registered. This process is called funding the trust — and it is the step that many clients (and some attorneys) skip or leave incomplete.
Online document platforms have made it easier than ever to print a living trust. They have not made it easier to do it correctly. The most common reasons DIY trust plans fail — and estates end up in court anyway:
The trust was never funded. The platform delivered a document, but no one transferred the house deed, retitled the bank accounts, or registered the investment accounts in the trust's name. The trust exists on paper; the assets do not know it exists.
The document was not executed correctly. California has specific requirements for signing and notarizing trust documents and amendments. An improperly executed trust — or an amendment that changes terms without meeting those requirements — can be challenged.
The plan was never updated. A trust created in 2015 does not account for 2026's Prop 19 rules, the AB 2016 changes, or any property acquired since the original signing. Estate plans are living documents, not one-time filings.
The plan does not coordinate with beneficiary designations. A sophisticated trust with misaligned retirement account beneficiaries or an uncovered life insurance policy can still generate significant probate exposure — or unintended tax consequences.
Probate avoidance is not about having a document. It is about having a plan that actually works when it needs to.
Call for a complimentary 15-minute phone consultation to assess your situation. I will tell you what is and is not protected — and what it would take to address any gaps. Available throughout California.
Schedule Your ConsultationYes — a properly funded revocable living trust avoids probate entirely. Assets titled in your trust's name pass directly to your beneficiaries without court involvement, regardless of estate size. The key word is "funded": the trust document alone is not enough. The assets must actually be transferred into the trust.
For deaths on or after April 1, 2025, the small estate affidavit threshold is $208,850 for personal property (Probate Code §13100). Additionally, a primary residence valued at up to $750,000 may qualify for a simplified AB 2016 petition instead of full probate. Estates that exceed these thresholds and include assets titled in the decedent's individual name generally require formal probate.
Statutory fees under California Probate Code §10810 are calculated on the gross estate value — before deducting any mortgage or debts. On a $1 million estate, combined attorney and executor fees total approximately $46,000. Additional court costs, filing fees, publication costs, and potential extraordinary fees are on top of that figure.
Yes, and this is essential. Real estate is added to a trust via a new deed recorded with the county recorder; bank and investment accounts are retitled in the trust's name. Any property not properly transferred into the trust at the time of death may end up in probate, even if your trust document instructs otherwise. I review funding with every client during the estate planning process and provide specific instructions for each asset type.
Your estate passes under California's intestacy laws (Probate Code §6400 et seq.), which distribute assets based on family relationships — not your intentions. The estate still goes through probate court, and without a nominated executor, the court appoints an administrator. The process can be longer and more costly without clear instructions in place, and the outcome may not reflect what you would have wanted.
A California Revocable TOD deed (Probate Code §§5600–5696) is a useful, limited tool. It can transfer one parcel of real estate to a named beneficiary without probate — with no cost and minimal paperwork. But it covers only one property, does nothing for incapacity planning, and creates complications if the beneficiary predeceases you or if the property needs to be managed during a period of disability. For most California homeowners, it is a supplement to a trust rather than a replacement.