When there is no trust, or the trust is incomplete, the estate goes through probate.
Probate is the court-supervised process for administering a decedent's estate. It applies when there is no living trust, when assets were left out of an existing trust, or when only part of the estate was titled properly. The process typically runs eight to fifteen months in San Diego County. We serve as executor (when there is a will) or administrator (when there is none).
When you'd come to us for this.
- A parent has died without a trust — only a will, or no will at all — and the estate is large enough to require formal probate rather than California's simplified small-estate procedure. The family needs someone to take the executor or administrator role.
- A trust was created but never funded. The decedent signed the trust document years ago and never retitled the house, the accounts, or the brokerage into the trust's name. Those assets pour back through probate even though the family thought everything was handled.
- The named executor cannot or will not serve. The person named in the will has died, declined, or is incapacitated. The court needs a fit executor to be nominated.
- The estate includes property that needs disposition — a house to sell, a business interest to wind down, investment accounts to liquidate — and the family wants a neutral professional handling those transactions on the estate's behalf.
What happens next.
1. The petition. Probate Code §8200 requires a petition to be filed in the superior court of the county where the decedent lived. The probate attorney drafts the petition and any associated filings; our role on the petition is the fiduciary being nominated. The court sets a hearing for approximately six to eight weeks out.
2. The appointment. At the hearing — usually uncontested — the court issues letters testamentary (with a will) or letters of administration (without one). The letters are the document we use to act for the estate: opening the estate bank account, gaining access to the safe-deposit box, transferring title.
3. The notice to creditors. Within four months of appointment, Probate Code §9100 requires written notice to known creditors. The four-month claim period begins running. Late claims are generally barred. We track the calendar carefully — missing a notice deadline can revive a claim that should have been closed.
4. The inventory and appraisal. An inventory of estate assets is filed with the court. Real property and tangible personal property are appraised by a probate referee. Cash and securities are valued at the executor's representation.
5. The administration. Debts are paid, taxes are filed (the decedent's final 1040; the estate's 1041 if required; Form 706 if the estate exceeds the federal exclusion), property is sold under court oversight where required, and the assets are gathered to a single account for distribution.
6. The closure. A petition for final distribution is filed. The court reviews the accounting, approves the personal representative's fee under Probate Code §10800 and the attorney's fee under §10810, and authorizes distribution. Distributions are made. Receipts are obtained. The estate closes.
What this costs.
California probate fees are statutory rather than negotiated. The personal representative's fee is set by Probate Code §10800 and the attorney's fee by §10810, both on the same sliding scale of the gross estate value — a graduated schedule in which the percentage steps down as the estate grows. The personal representative and the attorney each receive the statutory fee, and the court approves both at closure. We are glad to walk you through what that works out to for a specific estate; the current figures are published by statute and worth confirming against the estate's actual gross value.
Both fees are paid from estate assets. Additional or "extraordinary" fees may be allowed by the court for unusual work — litigation, the contested sale of real property, a tax controversy — petitioned for separately and reviewed on the record.
The probate-fee structure is set by statute, not by us. We disclose the full structure in the engagement letter, consistent with AB 1194 §6563.
Common questions.
Can probate be avoided?
Once the person has died, probate can only be avoided if the estate falls under California's small-estate threshold — a dollar figure the Judicial Council adjusts periodically — or if every asset passes by some non-probate mechanism such as joint tenancy, a beneficiary designation, or a properly funded living trust. After death, those mechanisms cannot be added retroactively. Probate is the default if no other path exists.
How long does California probate take?
For an uncontested estate in San Diego County, eight to fifteen months from petition to closure is typical. The four-month creditor period is a minimum; the court's calendar adds time around it. Contested probate — a will contest, a creditor dispute, an heir dispute — runs longer and costs more.
Do I need both an attorney and a fiduciary?
Yes. California probate is structured around two roles: the executor (or administrator) who acts for the estate, and the probate attorney who handles the court filings and represents the executor. Both fees are paid from the estate; both are statutory. The two roles do different work and check each other.
Trying to work out whether you need probate at all, or whether a trust handles it? Our guide to the difference between an executor and a trustee in California explains which role applies to which assets.
Wondering why some estates go through probate and others do not? Our guide to the difference between a trust and a will in California explains how a will leads to probate while a funded living trust avoids it.
If you are facing the process itself, our guide to what an executor does in California walks through getting appointed, the inventory, the creditor window, and distribution; and how long probate takes in California explains why most estates run twelve to eighteen months and what sets the timeline.
Consultations are by appointment and held in strict confidence.
Or call 760-33-TRUST (760-338-7878) directly.
Discretion and confidentiality are fundamental to our practice. Information submitted through this form is kept private and used solely for purposes of communication regarding potential fiduciary services.
