Many California families wonder, “Does a will avoid probate in California?” or “Can a will prevent probate?” It’s a very common misconception that simply having a will keeps your estate out of court. In reality, California probate laws make clear that a valid will does not bypass probate. In fact, creating a will typically ensures the estate goes through probate court so that the judge can validate it and supervise the distribution of assets. Here in Southern California, whether in Los Angeles, San Diego or elsewhere in the state, probate works the same way. A will only tells the court who gets what. It does not replace probate; instead, it guides the probate process on how to distribute your property.

Probate is simply the court-supervised process of settling an estate. It may sound daunting, but understanding the California probate process can ease concerns. In broad terms, probate involves the following steps:

• File a Petition to Open Probate: The executor (personal representative) submits the will (if there is one) and a death certificate to the local Superior Court (such as Los Angeles County’s court). This requests the court’s authority to handle the estate.
• Court Hearing to Validate the Will: At a hearing (usually 1–2 months after filing), the judge confirms the will is valid and officially appoints the executor. The court issues “Letters Testamentary” (executor) or “Letters of Administration” (if no will) to give legal power to the person managing the estate.
• Inventory and Appraisal of Assets: The executor must list all estate assets, including homes, bank accounts, investments, cars and personal property. Many assets (especially real estate and valuable items) must be appraised, usually by a court-appointed probate referee. The executor files this inventory with the court as part of the record.
• Notify Creditors and Pay Debts: Notice is given to creditors and heirs. The estate must pay any valid debts, taxes, and administrative costs out of the estate funds before distributing the remainder.
• Distribute Remaining Assets: After debts and taxes are settled, the executor asks the court to distribute the remaining property to the heirs or beneficiaries. If there’s a will, distribution follows its directions; if not, California’s intestacy laws (statutes) determine who inherits (spouses, children, etc.).
• Close the Estate: Finally, the executor provides a final report to the court. Once approved, the court closes the estate, and the executor’s job is done.

Each of these steps is required unless the estate qualifies for a very small estate procedure. But in a typical estate, having a will means you will go through this process. It just ensures your wishes are considered at each step.

What Goes Through Probate in California

Not everything you own needs to be probated. California law separates assets into those that must pass through probate and those that can pass outside of it. Understanding this can clarify why a will alone can’t avoid probate.

Assets That Typically Go Through Probate: Any property solely in the deceased person’s name, without a named beneficiary or joint owner, goes through probate. For example, if a decedent owned a house or car in their name only (not jointly) and no trust or beneficiary is involved, that asset is part of the probate estate. Likewise, anything held as tenants-in-common (common in some joint property arrangements) goes through probate to transfer the decedent’s share. Any personal property (furniture, jewelry, stock certificates, etc.) in the decedent’s name without a payable-on-death (POD) designation also enters probate. Simply put, if the asset is not set up to pass by operation of law, it will be handled by probate court.

Assets That Avoid Probate: Certain ownership structures and legal tools let property pass automatically to beneficiaries or co-owners, skipping probate. For instance, joint tenancy with right of survivorship means the property goes directly to the surviving owner when one dies. In California, community property with right of survivorship works similarly for spouses. A living trust is another way: any asset retitled in a trust is distributed per the trust terms, not probate. Also, California allows transfer-on-death (TOD) deeds for homes and payable-on-death (POD) designations for bank or investment accounts. These name a beneficiary who automatically gets the asset upon death. Life insurance and retirement accounts with named beneficiaries are also paid directly to those beneficiaries, bypassing probate.

In short, assets pass outside probate if they already have a legal beneficiary or joint owner. What does go through probate in California is generally only the property owned outright by the decedent without such designations. This is why having a will by itself cannot prevent probate, unless all your assets are arranged to avoid it (in which case probate isn’t triggered anyway).

Common Probate Myths in California

There are several myths that often confuse people about wills and probate in California. Let’s debunk the most common ones:

• Myth: “My Will Keeps Everything Out of Probate.” Reality: Not true. A will doesn’t keep you out of probate; it actually guarantees it for estates over a certain size. The will simply instructs the court how to divide your assets. Under California law, any probate estate above the small-estate thresholds must go through court supervision. As one attorney explains, in California “having a will does not exempt an estate from going through probate”; it just directs the probate court on your wishes. In fact, estates with a will usually must open probate so the court can verify the will and appoint an executor. Only very small estates (below a few hundred thousand dollars) can sometimes use simplified procedures, which requires meeting strict limits.
• Myth: “Joint Tenancy Solves Probate for Everything.” Reality: Joint ownership helps with probate for those specific assets, but it’s not a cure-all. If you hold property jointly with someone (like your spouse), then when one person dies it passes to the survivor, bypassing probate for that property. However, joint tenancy can create other issues (taxes, creditors, loss of control, etc.) and doesn’t cover your other assets. For example, if only your home is joint but your bank accounts and personal belongings are not, those other assets would still need probate. Estate planners note that joint ownership is “not the best strategy for everyone,” and it doesn’t address needs like naming guardians or specific bequests. It’s a tool in some cases, but not a complete estate plan.
• Myth: “Only the Wealthy Need a Plan (or Trust).” Reality: Estate planning and understanding probate are important at all levels. You don’t have to be rich to benefit. Even if your estate is relatively modest, probate can take months and cost a sizable percentage of your assets. Without a plan, intestacy laws will distribute your property (maybe not as you’d prefer) and small debts can complicate things. So planning even a simple will or trust is wise for most people. (This myth is more about general planning than probate itself, but it leads to confusion that “I don’t need to worry, I’m not rich.”)
• Myth: “My Spouse or Kids Will Handle It, So No Need for a Will.” Reality: In California, if you die without a will, state law (not necessarily your spouse’s wishes) decides who gets your property. While community property typically goes to a surviving spouse, other assets and situations (like kids from a previous marriage, or siblings) follow statutory rules. If everyone agrees, probate can still be used to sort it out, but it may not distribute things as you’d expect. It’s safer to write a will so you decide the outcome, instead of relying on default probate laws or hoping relatives sort it out seamlessly.

The key takeaway from these myths is: a will alone does not avoid probate. It’s just one piece of the plan.

Will vs. Probate in California

To be absolutely clear: in California, “Will” and “Probate” are not interchangeable. A will is a legal document expressing your wishes, whereas probate is the legal process that generally happens after death. Having a will is important, but it usually means your estate will go through probate if it’s large enough. There is no special exemption just for having a will.

In fact, a common estate planner’s phrase is: a will guarantees probate, it doesn’t prevent it. If your estate exceeds the small estate limits, and your assets aren’t already set up to avoid probate, the court must step in. The “will” will be probated, meaning the court confirms it’s valid and then carries out its instructions. On the other hand, if you had everything in a trust, or all your assets were jointly held or had beneficiaries, then probate might be avoided. In California, only when all property passes by trust or designation can an estate escape probate entirely.

You might also wonder about without a will. If no will exists, the estate still usually goes through probate (called intestate probate) so the court can determine heirs under California probate law. The process is similar, just that distribution follows California’s default rules rather than your personal instructions. In either case, probate is the legal “wedding” between you and your assets: the will is like the marriage vows about distribution, and probate is the wedding ceremony itself.

How to Avoid Probate in California

Since a will doesn’t skip probate, many Californians use other tools to keep assets out of court. Here are the common methods to avoid probate in California:

• Revocable Living Trust: This is one of the most powerful options. You create a trust document and transfer ownership of key assets (like your home and investments) into the trust. You control the trust assets during life, and a successor trustee distributes them after death. Because the trust itself owns the property, those assets never enter probate. Instead, the successor trustee follows your instructions privately. Living trusts also keep matters out of the public record and can be much faster than probate.
• Joint Ownership (Right of Survivorship): Holding property jointly with another (commonly a spouse) means the survivor automatically becomes sole owner. For example, a house or bank account in joint tenancy goes directly to the surviving owner. This bypasses probate for that asset. However, remember it only applies while both owners live, and the right transfers only the joint share. Also consider the downside: adding a joint owner means they have rights to the property (and creditors can reach it), so use this carefully.
• Beneficiary Designations: Many assets let you name who gets them on your death. The classic example is a payable-on-death (POD) bank account or a transfer-on-death (TOD) designation on an investment account. When you die, the money transfers directly to the named beneficiary with a simple form, no probate needed. Life insurance policies and retirement accounts (IRAs, 401(k)s) work similarly: just name your beneficiaries and they will receive those benefits outside of probate.
• Transfer-on-Death Deeds for Real Estate: Since 2016, California allows a TOD deed for a home. You can record a TOD deed that names who inherits your home when you die. This deed takes effect only upon your death and avoids probate. (This was designed so homeowners could bypass probate without setting up a trust.) Keep in mind TOD deeds have specific rules to follow, but they’re a straightforward way to pass a house to a chosen person without a will.
• Small Estate Procedures: California has simplified procedures if the estate is very small. For personal property (bank accounts, cars, jewelry, etc.), estates under $184,500 (as of 2025) can use an affidavit or petition to transfer assets with minimal court involvement. For real estate, there is a special petition if the primary home is under $750,000 (since 2025). This means small estates (roughly, assets under a few hundred thousand) might skip formal probate entirely. Note that these thresholds count total value of assets, and were recently raised, but many California homes are still worth more than $750k, so most families with a house will still need to go through probate or trust procedures.
  
  

Using some or all of these tools can dramatically reduce or eliminate the need for probate. For example, many people use a package approach: put the house and investments in a living trust, add a joint owner on a car, name beneficiaries on accounts, and carry POD designations on smaller accounts. That way, when you pass, most assets flow directly without court. It’s wise to consult a professional to make sure titles are correctly changed and beneficiaries properly named. As one estate planning guide notes, “using strategies such as living trusts, joint ownership, and TOD designations can streamline the transfer of assets and protect your loved ones from unnecessary delays and expenses”.

Probate Real Estate in California

Real estate often makes up the bulk of a California estate, and property can complicate probate. Here’s what happens to your home or other real property if it goes through probate:

1. Inventory and Appraisal: If your house is part of the probate estate (e.g. it was solely in your name), the executor must include it in the inventory. California law requires a professional appraisal of real property by a court-appointed probate referee. This gives the court a value for the property.
2. Care and Maintenance: The executor is legally responsible for protecting the property from the time probate is opened until it is sold or distributed. This means securing the home (changing locks if it’s vacant), keeping insurance current, paying property taxes, and performing reasonable upkeep. Failure to maintain the property could result in loss of value.
3. Decision to Sell or Distribute: Eventually, the executor (often with court approval) decides whether to sell the house and divide the cash or transfer ownership directly to someone. This can be guided by the will (if it instructs sale or gifts the house to a specific person) or by agreement among heirs. If selling, the property usually goes on the market. For a court-ordered sale, California generally requires confirmation of the sale price (a court hearing where the judge approves the sale terms) to protect the estate. The net proceeds then become part of the estate funds.
4. Transfer: Once the sale is final or if the property is given to an heir, the title is changed. If sold, the executor uses proceeds to pay debts and then distributes the rest. If distributed, the court issues an order or deed to transfer title to the heir (often after debts are paid).
5. Special Rules: In Los Angeles and some other California counties, “Heggstad petitions” and other special rules exist to avoid probate under certain conditions (e.g. if a house was intended for a trust but wasn’t properly funded). And remember, if a home was held jointly with survivorship or in a living trust, it never enters probate in the first place.

Because real estate is complicated, many families work with an attorney or real estate agent experienced in probate sales. They can handle things like court confirmation, special disclosures required for probate sales, and negotiations. But the key point is: any home not already taken care of by a trust or deed will be handled by the probate process: inventoried, protected, and eventually sold or transferred under court supervision.

Key Takeaways for California Families

• A will does not avoid probate. In California, having a will means the estate will generally enter probate if it’s large enough. The will guides the court, but cannot prevent the court process.
• Probate involves court supervision of your assets. The executor files papers, inventories everything (including your home), pays debts, then distributes what’s left. It can take months and involve fees.
• Use planning tools to skip probate. Strategies like living trusts, joint ownership, POD/TOD designations, and small estate affidavits can help assets pass directly to heirs.
• Real estate requires special handling. A home in probate must be protected, appraised, and usually sold or transferred under court order. Many Californians use trusts or TOD deeds to avoid this step.
• Stay informed and get help. California probate laws change, and deadlines/methods vary by situation. Consult professionals (like Jack Ma Real Estate) early to make sure your estate plan truly reflects your wishes and avoids unnecessary court delays.

Understanding these points can prevent unwanted surprises after death. Careful planning now means more of your property goes to your family; not to lawyers and court fees, and ensures your loved ones are ready to act when the time comes.

Empower Your Family’s Future with Jack Ma Real Estate

Jack Ma Real Estate is here to guide California families through estate and probate concerns. Our experienced agents and legal partners understand California probate laws and the unique challenges of probate property. Whether you need help setting up a living trust, titling property correctly, or managing a probate sale of real estate, Jack Ma Real Estate can simplify the process. We believe everyone deserves peace of mind about their legacy. Contact us today for a consultation, let us help secure your family’s future and keep your hard-earned assets where they belong, with your loved ones. Act now to protect your legacy!

FAQs

Q1: Does a will avoid probate in California?

No. In California, a will does not avoid probate. If you have a valid will, it will be submitted to probate so the court can validate it and appoint an executor. The will simply instructs the court how to distribute assets; it does not bypass the court process. Only if your total estate falls under California’s small estate thresholds (currently around $184,500 for personal property, and limited rules for a primary home up to $750,000) can you use simplified procedures or avoid a full probate.

Q2: What goes through probate in California?

Generally, any assets in the decedent’s name alone go through probate. This includes a house, car, bank accounts, and other property solely owned by the person (with no beneficiary or joint title). Tenants-in-common shares and any assets without designated beneficiaries (like payable-on-death) are also probated. By contrast, assets held in joint tenancy, in a living trust, or with transfer-on-death designations pass outside of probate. Life insurance and retirement accounts with beneficiaries likewise go directly to the named heirs.

Q3: How can I avoid probate in California?

There are several legal tools. The most common is a living trust: place your home, accounts, and other assets in a revocable trust you control, so they pass to heirs privately after death. You can also hold property jointly (so it goes to the survivor), and use beneficiary designations on accounts or a transfer-on-death deed for a home. Many people name POD beneficiaries on bank/investment accounts and insurers on IRAs. Also, California’s small estate procedures allow simple affidavits to transfer assets if the estate is under certain values. Combining these methods can greatly reduce the need for probate.

Q4: Does joint tenancy avoid probate in California?

Yes for that specific asset. If you hold property as joint tenants with someone (e.g. you and your spouse), when you die your share automatically goes to the surviving joint owner. This skips probate for that property. However, it only applies to the jointly held asset, and there can be other legal implications (such as creditor claims). So joint tenancy can help assets avoid probate, but it’s not the same as having a will or trust.

Q5: What happens to real estate in probate in California?

Any home or land solely in the decedent’s name becomes part of the probate estate. The executor must secure and insure the property, have it appraised by a court referee, and then decide with the court whether to sell it or pass it to heirs. Often the house is sold under court supervision and proceeds distributed. If it’s given to an heir, the court will issue a deed transfer. Note that California does have simplified options for small estates (for example, a primary home under $750,000 can qualify for a streamlined transfer), but in most cases, real estate triggers the need for probate or trust administration.