Five Common Misconceptions About California Probate

Let’s Explore Several Misconceptions about California probate

1. Probate is Always Required

Many people assume that all estates must go through probate, but this isn’t always the case. California offers several legal avenues to avoid probate depending on how assets were owned and structured before death.

• Living Trusts: If the deceased had a revocable living trust, assets in the trust pass to beneficiaries without going through probate. The successor trustee simply follows the trust’s instructions.
• Joint Ownership: If assets were owned in joint tenancy or community property with right of survivorship, the surviving owner automatically receives them without probate.
• Beneficiary Designations: Some assets bypass probate because they have named beneficiaries, such as:
  1. Life insurance policies
  2. Retirement accounts (IRA, 401(k))
  3. Payable-on-death (POD) bank accounts
  4. Transfer-on-death (TOD) securities
• Small Estates: If the total probate assets are valued under $184,500 (as of 2024), heirs may be able to claim assets using one of California’s alternatives to probate instead of going through a full probate.

Thus, probate is only required for assets solely in the decedent’s name without a designated beneficiary or joint owner.

2. The State Takes Everything If There’s No Will

Many believe that if someone dies without a will (intestate), their property goes to the state of California. In reality, intestacy laws ensure that the estate is distributed to the deceased’s closest legal relatives.

Order of Heirship in California (if no will exists):

1. Surviving spouse inherits all community property and at least a portion of separate property.\
2. Children inherit next (if no spouse, they get everything).
3. Parents inherit if there are no spouse or children.
4. Siblings inherit if there are no spouse, children, or parents.
5. More distant relatives (nieces, nephews, cousins, etc.) if no immediate family exists.

The state only takes the estate (escheats to California) if no legal heirs can be found, which is very rare.

3. Probate Always Takes Years to Complete

Misconceptions about California probate come in all shapes and sizes, one of which is how long probate takes. Probate can be lengthy, but it does not always take years. The timeline depends on factors such as estate complexity, creditor claims, and legal disputes.

Typical Probate Timeframe in California:

• Simple Estates: 9 to 11 months
• Moderate Estates: 11 to 14 months
• Complex or Contested Estates: 14+ months

Factors That Slow Down Probate:

• Missing or ambiguous will: If a will is unclear or contested, probate can drag on.
• Multiple beneficiaries: The more heirs involved, the greater chance of disputes.
• Creditor claims: California law requires at least 4 months for creditors to file claims.\
• Real estate sales: If an estate includes property, selling it can delay distribution.

Ways to Speed Up Probate:

• Using a revocable living trust avoids probate altogether.
• Filing an alternate simplified proceeding if assets qualify.
• Heirs working together to avoid disputes.

While probate isn’t instant, it doesn’t always take years—many estates close within 9–18 months.

4. A Will Avoids Probate

One of the most common misconceptions about California probate is that having a will means no probate is needed. In reality, a will must go through probate before assets can be distributed.

Why a Will Requires Probate:

• The court validates the will and ensures it was properly executed.
• The executor is given legal authority to handle the estate.
• Creditors and taxes must be paid before heirs receive their inheritance.
• Any disputes over the will must be resolved.

What Avoids Probate?

• A revocable living trust (assets in the trust bypass probate).
• Joint tenancy (assets automatically transfer to the surviving owner).
• Payable-on-death (POD) and transfer-on-death (TOD) accounts.
• Alternate probate proceedings (if estate qualifies under $184,500).

Thus, while a will is better than no estate plan, it does not avoid probate—it only directs how probate should be handled.

5. The Executor Can Do Whatever They Want

Some people believe that an executor (or administrator) has unchecked power, but in reality, they have a legal duty to act in the best interest of the estate and its beneficiaries. Believing that an executor can do whatever they want is one of the common misconceptions about California probate.

Executor Responsibilities:

• File the will with the probate court (if one exists).
• Notify heirs and creditors.
• Take inventory of assets and debts.
• Pay outstanding debts and taxes from the estate.
• Distribute remaining assets according to the will (or state law if no will exists).
• Submit an accounting to the court before finalizing the estate.

Legal Accountability:

• Executors must follow California probate law.
• They can’t mismanage funds, withhold information, or unfairly favor beneficiaries.

If an executor acts improperly, beneficiaries can:

• File a court petition to remove them.
• Demand an accounting of all estate transactions.
• Sue for mismanagement or fraud.

The executor has authority, but not absolute power—they must act fairly, transparently, and in compliance with the law.

Final Thoughts

We hope this article cleared up some common misconceptions about California probate. Understanding how probate works in California can help you make better estate planning decisions. Avoiding common misconceptions ensures you or your loved ones are prepared for the probate process—or can bypass it entirely with the right legal strategies.