Law 101

Probate & Inheritance

Home Law 101 Probate & Inheritance

What is a decedent’s estate?

“Decedent’s estate” is a formal way of referring to property left when a person dies. The “decedent” is the person who has died, and their “estate” is the property they owned at the time of death.  In California, a decedent’s estate can be distributed in one of three ways: as a “small estate” under $150,000; in probate court as an independent probate proceeding (when the decedent left a will naming an executor); or in probate court as a court-supervised estate (when the decedent did not leave a will or name an executor).

Does every estate have to go through court?

If there is little property in the estate, or the person planned their estate to avoid probate with a trust or other probate avoidance tactics, court may not be necessary.

What is the procedure if there is a will?

If the decedent left a will, it usually names a person to be the personal representative of the estate, called an “executor.” Unless the will expressly prohibits the procedures authorized by the California Independent Administration of Estates Act (a rare occurrence), the executor is responsible for conducting an inventory and accounting; distribution of the estate’s assets; and paying the estate’s debts and taxes. This is known as an “independent probate proceeding” because the executor has full authority over the estate and can make decisions without court supervision.

What if the decedent left no will or the will did not name an executor?

If there is no will, the probate court will appoint an administrator. If there is a will but it does not name an executor, the court will appoint an “administrator with will annexed.” Like the executor, the administrator is responsible for completing all the requirements to distribute the assets of the estate, with one important distinction: the administrator has only limited authority in carrying out the administration of the decedent’s estate and requires court approval before undertaking certain actions. This type of proceeding is known as a “court-supervised estate.”

What if the decedent had a trust?

When the trustee (or, in the case of a joint spousal trust, the second trustee) dies, a successor trustee takes over and distributes the property according to the terms in the trust document.  The trust document itself should name the successor trustee. To establish their authority over the decedent’s property, the successor trustee provides businesses and agencies with a death certificate, an affidavit, and/or the trust documents.

Real estate transfers without probate

Special non-court procedures apply if the real estate is in a trust, owned by more than one person (joint tenants or community property), or covered by a Transfer on Death (Beneficiary) Deed. Forms and instructions for many of these procedures can be found on our free forms page. Learn more about the different procedures by visiting our “Transferring Real Estate After a Death” page.

Small estates (under $150,000, no real estate)

If the deceased person did not own real estate (or any real estate is transferred outside of probate), property like bank accounts, insurance, property in storage, and the like can be collected by the heir using a notarized Small Estate Affidavit (also called an Affidavit for Collection of Personal Property) without going to court at all. You can download an affidavit from our free forms page. Learn more about how to use the affidavit by reading our Small Estate Affidavit guide.

Vehicles and some mobile homes may be transferred by using DMV forms.

Community Resources

Bookshelves labeled Self Help For Help
SH@LL (Self Help @ the Law Library) Senior Legal Hotline Elder and Health Law Clinic
Family Court Probate Court
Sacramento County Superior Court, Family and Probate Division

Forms

The Judicial Council creates some forms used to transfer property after death. The Sacramento County Public Law Library has created a variety of affidavits. For other situations, you may need to create your own forms. Our Legal Research Guides and Step-by-Steps have instructions and samples for many commonly-used forms.

Form Resources

Court Summons Judicial Council Forms Forms for Probate cases.
Sale of real property Transferring Real Property

Forms for transferring real estate without a court order.  More Information

Research Guides

The Law Librarians have created these research guides as an aid for those starting a legal research project. These guides recommend print and electronic resources that will help you find answers to your law-related questions. Many guides provide step-by-step information, as well as sample forms, for common legal procedures.

Common Questions

Law Librarians write articles on a variety of common legal issues.

Pamphlets

The Law Librarians created these pamphlets in response to frequently asked questions on subjects not appropriate for more substantive guides.

Related Websites

These websites provide information about probate-related issues.

Wills, Estates, and Probates From the California Courts Self-Help Center. Information about Probate.
Computer mouse Transferring Property When Someone Dies From the San Francisco Superior Court. Information about small estates.
Keyboard What Happens to Someone's Property When They Die?

From the San Francisco Superior Court. Information about probate-related procedures.

Last will and testament photo Wills, Estates & Trusts (Self Help) From the Los Angeles Superior Court. Instructional guides on probating estates.