Key Takeaways
Inheriting California real estate often means navigating probate—a court-supervised process that transfers property from the deceased to heirs. This guide explains how probate real estate in California works, from filing initial petitions through final distribution. You'll learn executor responsibilities, property valuation requirements, statutory fees, and realistic timelines.
We cover Orange County-specific procedures, Proposition 19 property tax implications, alternatives that avoid probate, and when to hire an attorney. Whether you're an executor managing an estate or an heir awaiting inheritance, understanding probate real estate in California procedures helps you anticipate costs, avoid delays, and make informed decisions throughout the process.
When someone dies owning real estate, their property typically goes through probate—a court-supervised process that transfers assets to heirs. This section explains what probate is and why real estate creates unique challenges in the process.
Probate is the legal procedure where a court validates a will (if one exists), appoints someone to manage the estate, pays debts and taxes, and distributes remaining assets to beneficiaries. For real estate, this means the court oversees every step—from valuing the property to transferring the title.
You must file probate in the county where the decedent lived, or if they lived out of state, where their California property is located. The court filing fee is typically $435, though you can apply for a waiver if you can't afford it. The probate court process protects heirs by ensuring proper title transfer, but it also means delays and public record of all transactions.
Real estate differs from other assets because it can't be simply divided or quickly liquidated. The property must be formally appraised, maintained during probate, and either distributed with clear title or sold with court approval. California probate law requires specific procedures for real estate that don't apply to bank accounts or personal property.
Real estate administration in California probate includes securing the property, obtaining professional appraisals, managing ongoing expenses like mortgages and property taxes, and coordinating with the county recorder to transfer title. If the property must be sold, additional court approval may be required depending on the executor's authority level.
The personal representative (executor or administrator) manages four key tasks: protecting and maintaining the property, obtaining official appraisals, transferring title to heirs, or selling the property. Each step has strict deadlines and procedures under California law.
Once appointed, the personal representative must obtain a probate bond unless the will waives it or all heirs consent. The bond protects beneficiaries from mismanagement. Within 90 days of receiving Letters (the court document granting authority), the executor must notify the Franchise Tax Board, Department of Health Services, and Victims Compensation Board of the death.
The executor must also obtain a tax ID number from the IRS within 90 days and file all necessary state and federal tax returns. California probate law holds the personal representative personally liable for property damage, unpaid taxes, or failure to maintain insurance during probate.
The personal representative must complete an Inventory and Appraisal (Form DE-160) within four months of appointment. All non-cash assets, including real estate, must be valued by a court-appointed Probate Referee—you cannot use your own appraiser for probate purposes.
The estate's value equals the total inventory appraisal plus any gains on sales, plus receipts, minus losses from sales. This calculation excludes mortgages and other encumbrances. The Probate Referee's valuation determines statutory fees for both the attorney and personal representative.
The personal representative files a final report, final accounting, and petition for final distribution when ready to close the estate. Beneficiaries can waive the final accounting by signing a written waiver or acknowledgment, which speeds the process.
The court sets a hearing date, and an uninvolved adult must notify all interested persons. Once the judge approves distribution, the court issues orders that allow the personal representative to transfer title by recording certified copies with the county recorder. Heirs receive clear title only after this final court approval.
Under the Independent Administration of Estates Act (IAEA), executors with full authority can sell real property by giving Notice of Proposed Action (Form DE-165) to heirs—no court hearing required. Heirs have 15 days to object.
Executors with limited authority must obtain court confirmation for any sale. The property must sell for at least 90% of its appraised value, and the sale is subject to overbid at a court hearing where others can bid higher. This process adds months to the timeline but protects heirs from below-market sales.
Not all inherited real estate goes through probate. Whether you need probate depends on how the property was titled and the total estate value. California offers several alternatives that can bypass the lengthy court process.
You must probate real estate when the owner dies with property titled solely in their name—whether they had a will or died intestate (without a will). If a will exists, you must deliver the original to the Superior Court clerk within 30 days of death, even if you're not sure probate is necessary.
To start probate, file a Petition for Probate (Form DE-111) along with supporting documents: Duties and Liabilities of Personal Representative (DE-147), Proof of Subscribing Witness (DE-131) for witnessed wills, or Proof of Holographic Instrument (DE-135) for handwritten wills. The court won't transfer real estate title without this formal process when the property has no other ownership mechanism in place.
Small estates with personal property under $208,850 (effective April 1, 2025) can use a Small Estate Affidavit (§13100), though this doesn't apply to real property. For real estate specifically, surviving spouses or registered domestic partners can use a Spousal/Domestic Partner Property Petition (§13500) with no value limit—the fastest way to transfer property.
Joint tenancy automatically transfers property to surviving co-owners without probate. Transfer on Death (TOD) deeds allow you to designate beneficiaries who receive the property immediately upon death. Living trusts avoid probate entirely by holding title in the trust's name. A Heggstad/§850 Petition can transfer property that was intended for a trust but never formally retitled—useful when estate planning was incomplete.
California probate follows five distinct phases, each with strict deadlines. Missing a deadline can delay the entire process by months. Here's what happens at each stage when real estate is involved.
Submit your Proposed Order for Probate (DE-140), Proposed Letters (DE-150), and bond documents three weeks before the hearing date. Within 15 days of the hearing, you must publish Notice of Petition to Administer Estate (DE-121) in a newspaper of general circulation where the decedent lived. An uninvolved adult must mail this notice to all heirs, beneficiaries, and interested parties, then file proof of both publication and service.
Two weeks before the hearing, check the court's website for Probate Notes—the examiner's list of defects or missing information in your petition. Correct these immediately or your hearing will be continued. Once approved, the court issues Letters granting you authority to act as personal representative.
The court appoints a Probate Referee on your Order for Probate. Contact this referee immediately to schedule appraisals of all non-cash assets, including real estate. You cannot use private appraisers—California requires neutral, court-appointed referees to prevent value manipulation.
The referee inspects the property and provides a written valuation that becomes the official estate value. This determines statutory fees and establishes the baseline for any future sale.
You must secure, insure, and maintain all real estate during probate. This includes paying mortgages, property taxes, HOA fees, and utilities. Neglect can make you personally liable for damages or loss of value.
Courts typically require status reports one year after appointment. A hearing is scheduled where the judge reviews your management of the estate. If you need more time to complete administration, you can request an extension at this hearing.
Within four months of receiving Letters, mail Notice of Administration to Creditors (DE-157) to all known and reasonably ascertainable creditors. Creditors have four months from Letters issuance or 60 days from receiving notice (whichever is later) to file claims.
Within 30 days of receiving any claim, file an Allowance or Rejection of Creditor's Claim (DE-174). Pay approved claims if estate funds are available. File the decedent's final personal income tax return and estate tax returns if the estate earned income from interest, dividends, or property sales during probate.
Within 1 to 1½ years of appointment, file your final accounting (or beneficiary waivers) and petition for final distribution. The court sets a hearing, and an uninvolved adult notifies all interested persons.
After the judge approves distribution, you transfer assets according to the court order. Once you file receipts proving all distributions are complete, the court discharges you and closes the case. For real estate, record certified copies of the distribution order with the county recorder to transfer title.
Three major problems plague probate cases: family disagreements over property, procedural delays, and unexpectedly high costs. Understanding these challenges helps you prepare for and potentially avoid them.
Conflicts arise when siblings disagree about keeping or selling inherited property, when one heir wants to buy out others, or when beneficiaries question the property's appraised value. These disputes can stall probate for years if heirs file objections or contest the executor's proposed actions.
Mediation often resolves conflicts faster and cheaper than litigation. The personal representative has a fiduciary duty to treat all beneficiaries fairly, but cannot please everyone. Clear communication and transparency about property values, maintenance costs, and distribution timelines reduce disputes.
Orange County probate examiners review petitions 3-4 weeks before hearings and issue "probate notes"—written summaries of defects or missing information. You must correct these issues or your hearing gets continued, adding months to the process. Sign up for the text message/email notification program to know immediately when new notes post.
Email questions about probate notes to ProbateCalendar@occourts.org with your hearing date, time, department, case number, case caption, and name. You'll receive responses within 24 hours. For continuance requests, email ContinueProbate@occourts.org no later than 4:00 p.m. five court days before your hearing—but only for your first continuance. Orange County also offers a Remote Clear Your Notes Workshop to help resolve examiner concerns.
Personal representatives typically pay court filing fees ($435), newspaper publication ($200-400), probate referee appraisals ($200-1,000+), and other administrative expenses upfront—often exceeding $1,000 total—then get reimbursed from the estate. Budget for these costs early.
California law sets statutory compensation for both the attorney and personal representative:
For a $500,000 estate, statutory fees total $13,000 each for the attorney and personal representative—$26,000 combined. Courts may award additional compensation for extraordinary services, including paralegal work under attorney supervision. Contingent fee agreements are allowed if written, compliant with Business & Professions Code §6147, and court-approved. If the will specifies attorney compensation, that amount is final unless the court relieves the provision. Any agreement for higher-than-statutory fees is void.
Proposition 19 drastically changes property tax treatment for inherited homes. Effective February 16, 2021, parent-to-child transfers of a principal residence avoid reassessment only if the child also uses it as their primary residence and claims the homeowners' or disabled veterans' exemption within one year. File Form BOE-19-P with the county assessor.
The exclusion amount is $1 million (adjusted annually): $1,022,600 for 2023-2025, and $1,044,586 for February 16, 2025 through February 15, 2027. The child's new taxable value equals the GREATER of: (1) market value at transfer minus the exclusion, OR (2) the parent's Proposition 13 value.
Example 1: Market value $800,000, parent's Prop 13 value $300,000 → child's taxable value is $300,000 (parent's lower value applies).
Example 2: Market value $1,500,000, parent's Prop 13 value $300,000 → child's taxable value is $500,000 ($1,500,000 - $1,000,000 exclusion = $500,000, which exceeds $300,000).
Grandparent-to-grandchild transfers follow the same rules but require that the grandchild's parents are deceased. Family farms qualify without requiring the transferee to live on the property. Transfers between siblings or other family members don't qualify, nor do non-primary residences. Contact the Orange County Assessor's office at (714) 834-2727 for specific guidance.
When someone dies without a will or trust, California's intestate succession laws determine who inherits. The state has a predetermined hierarchy of heirs, and real estate follows these rules just like other assets—but with added complexity since property can't be easily divided.
Intestate succession means the state decides who inherits based on family relationships, not the decedent's wishes. The court still requires formal probate to transfer real estate title—dying without a will doesn't avoid probate, it just removes your control over who receives what.
Real estate poses special challenges under intestate succession because multiple heirs often inherit fractional interests as "tenants in common." If three children inherit equally, each owns one-third of the property. This creates complications when heirs disagree about selling, renting, or occupying the home. Unlike bank accounts that can be divided precisely, real estate requires either a buyout agreement, partition sale, or continued co-ownership.
California Probate Code §6401 establishes the inheritance priority. A surviving spouse or registered domestic partner receives either 100% of community property or one-third to all of separate property depending on whether the decedent has children, parents, or siblings. If there's a spouse and one child, they split the separate property 50-50. With a spouse and multiple children, the spouse gets one-third and children split two-thirds equally.
If there's no surviving spouse, children inherit everything equally. If no children survive, parents inherit. If no parents survive, siblings split the estate. The law continues down the line to nieces, nephews, grandparents, aunts, uncles, and cousins. Only if no relatives can be found does property "escheat" to the state. The court appoints an administrator (usually a family member) to manage probate, and statutory fees apply just as they would with a will.
Probate with real estate involves complex legal procedures, strict deadlines, and potential personal liability. While California allows self-representation, most personal representatives hire attorneys to navigate the process, and statutory fees come from the estate, not your pocket.
Probate attorneys handle court filings, deadline tracking, creditor negotiations, and real estate transactions that personal representatives find overwhelming. Real estate adds layers of complexity: title issues, property tax implications, mortgage assumptions, sales requiring court confirmation, and distribution orders that must be recorded correctly.
Attorneys prevent costly mistakes like missing creditor notice deadlines, improper property valuations, or unauthorized sales that trigger personal liability. Since statutory attorney fees are calculated as a percentage of estate value and paid from estate assets—not your personal funds—there's little financial incentive to go it alone. A $500,000 estate pays $13,000 in statutory attorney fees whether you hire counsel or not; you simply don't receive that $13,000 as personal representative if you self-represent.
Choose an attorney who practices primarily in probate and trust administration, not general practice lawyers who occasionally handle estates. Ask how many probate cases they complete annually and what percentage involve real estate. Local experience matters—attorneys familiar with Orange County probate examiners, note-clearing procedures, and typical hearing timelines move cases faster.
Interview multiple attorneys about their communication style and fee structures. While statutory fees are set by law, some attorneys charge separately for extraordinary services like will contests or property sales. Verify they carry malpractice insurance and check State Bar records for disciplinary actions. The best attorneys explain the process clearly, respond promptly to questions, and proactively identify potential problems before they delay your case.
Probate real estate administration involves complex legal procedures, strict deadlines, and potential personal liability. Don't navigate this process alone. Parker Law Offices specializes in California probate and real estate matters, helping executors and heirs through every step—from filing petitions to transferring property titles.
Our experienced attorneys understand Orange County court procedures, can clear probate examiner notes efficiently, and ensure compliance with all statutory requirements. We handle property valuations, creditor claims, court confirmations for sales, and Proposition 19 property tax issues. Schedule a consultation to discuss your case and learn how we can protect your interests while moving your probate case forward efficiently. Contact Parker Law Offices today.
