Losing a loved one is a sad and difficult time for family, relatives, and friends. In addition, those left behind must often figure out how to transfer or inherit property from the person who has died.
To do this, you must usually go to court. And dealing with the courts and the property of someone who has died is very complicated. Sometimes, however, family or relatives may be able to transfer property from someone who has died without going to court. But it is not always easy to tell whether you need to go to court or qualify to use a different procedure.
This section will give you some general information to help you understand what your choices may be, but we still encourage you to talk to a lawyer to get specific answers about your situation. You can usually pay the lawyer’s fees from the property in the case.
To find a lawyer, click for help finding your bar association's lawyer referral service or call 1-866-442-2529.
If you want information about a probate guardianship case, visit our Guardianship section.
Probate means that there is a court case that deals with:
• Transferring the property of someone who has died to the heirs or beneficiaries;
• Deciding if a will is valid; and
• Taking care of the financial responsibilities of the person who died.
In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.
You may or may not need to go to probate court to obtain title to property belonging to a dead person. Figuring out if you have to go to probate court depends on many issues, like the amount of money involved, the type of property involved, and who is claiming the property.
And deciding if probate court is needed may also depend on the how the property is owned (the type of title ownership) or if there is some type of contract with beneficiaries. For example:
If you have the legal right to inherit personal property, like money in a bank account or stocks, and the estate is worth $150,000 or less, you may NOT have to go to court. There is a simplified process you can use to transfer the property to your name. The value of the property is based on what it was worth on the date of death —not on what the property is worth now.
To use the simplified process for transferring personal property
First, figure out if the value of the property (the estate) is worth $150,000 or less. To do this:
Include:
Do not include:
For a complete list, see California Probate Code section 13050.
If the total value of these assets is $150,000 or less and 40 days have passed since the death, you can transfer personal property by writing an affidavit. There is a special form for this that you can get from most banks and lawyers. Your court’s self-help center may also have this form or a sample you can use to guide you.
Click for more information on the affidavit and for help preparing your own form.
You may be able to use a simple form, called a Spousal or Domestic Partner Property Petition (Form DE-221) to get a court order that says:
What your share of the community property is; and
If the surviving spouse/partner is legally entitled to all of the property, a more complicated probate procedure may not be required. For example, a couple that was married for decades may only own “community property,” which belongs to the surviving spouse/partner and is confirmed by the court in the spousal property petition case.
If the dead person’s property is worth more than $150,000, none of the exceptions apply. You must go to court and start a probate case.
To do this, you must file a Petition for Probate (Form DE-111). This one form has different options, such as:
Talk to a lawyer if you are not sure which option you should choose on this form. Click for help finding a lawyer.
1. The custodian of the will (the person who has the will at the time of the person’s death) MUST, within 30 days of the person’s death:
If the custodian does not do these things, he or she can be sued for damages caused.
NOTE: If there is no will and a court case is needed, the court will appoint an administrator to manage the estate during the probate process. The person who wants to be the administrator must file a Petition for Letters of Administration (Form DE-111). The administrator usually is the spouse, domestic partner, or close relative of the dead person.
2. Someone, called "the petitioner," must start a case in court by filing a Petition for Probate
The Petition for Probate has different options, like:
Petition for Probate of Will and for Letters Testamentary Petition for Probate of Will and for Letters of Administration with Will Annexed Petition for Letters of Administration
Note: To start a probate case you will need more forms than just the Petition for Probate form. Talk to a lawyer for help with your case. Click for help finding a lawyer.
3. After a probate case is filed:
Do I Need Estate Planning?
A State Bar of California pamphlet.
Do I Need a Living Trust?
A State Bar of California pamphlet.
Do I Need a Will?
A State Bar of California pamphlet.
DMV: Transfer a vehicle without probate
Information from the Department of Motor Vehicles' website. Scroll down to the section called "Transferring Ownership" and then to "Transfer Without Probate."
DMV: Affidavit for Transfer Without Probate
Department of Motor Vehicles' form.
California Public Law Libraries
This website provides extensive online self-help information, listing of county law libraries, AskNow law librarian service, mini-research classes, general research, and links to more resources. Talk with a lawyer to understand how law affects you and your rights. Click for help fnding a lawyer.
Sacramento County Public Law Library Legal Resource Guide
This site has a list of books on wills, probate, trusts, and estates and other topics. Click on the topic that interests you for more information.
San Francisco Law Library's Research Guide
This site has a list of books on wills, probate, trusts, and estates. Click to find a book on this list.
Statutory Will Form
This site includes the statutory will form, instructions, commentary, and questions and answers about the form. Created by the State Bar of California.