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Anyone with assets can benefit from an estate plan. We offer options for people from all walks of life. Estate planning can save your loved ones from making difficult decisions after you pass away or if you become unable to make your own decisions. It can also ensure that your wishes for both your assets and your care will be met.
At The Dayton Law Firm, P.C., our team of San Jose estate planning attorneys is compassionate to families and individuals. We aim to help answer questions about your long-term planning options. We help with a variety of estate needs, including:
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When someone in Santa Clara County dies without a will, the family’s questions usually come fast. Who gets the house? Does the surviving spouse inherit everything? What about the kids from a first marriage, or the brother nobody has spoken to in years?
California answers those questions with a fixed set of rules called intestate succession, found in Probate Code sections 6400 through 6414.
What “Intestate” Means Under California Law
A person dies “intestate” when they leave no valid will, or when their will does not dispose of all of their property. Under Probate Code section 6400, anything not effectively given away by a will passes to the decedent’s heirs as the law prescribes.
An “heir at law” in California is anyone, including a surviving spouse, who is entitled to inherit under these rules. Being an heir has nothing to do with closeness or who provided care in the final years. It is determined entirely by legal relationship and the order set out in the statute.
It also matters what intestacy does not reach. Assets held in a living trust, property owned in joint tenancy, and accounts with a named beneficiary (life insurance, IRAs, 401(k)s, payable-on-death accounts) pass according to their own terms. Intestate succession only governs the property that was left in the decedent’s own name with no other instructions. Our guide to what assets are subject to probate in California walks through those categories in more detail.
Step One: Separate Community Property From Separate Property
For a married decedent, the first question is not who the relatives are. It is what kind of property is in the estate. California is a community property state, and Probate Code section 6401 treats the two types very differently.
Community property is generally anything acquired during the marriage by either spouse’s earnings or efforts. The surviving spouse already owns half of it. Under section 6401(a), the decedent’s half also goes to the surviving spouse. In practical terms, the surviving spouse ends up with 100 percent of the community property, no matter how many children or other relatives survive. Quasi-community property (property acquired while living in another state that would have been community property here) follows the same rule.
Separate property is property owned before the marriage, or received during the marriage by gift or inheritance, and kept separate. This is where other relatives can share with the spouse.
Registered domestic partners are treated the same as spouses for inheritance purposes under Family Code section 297.5. It is worth noting that this applies only to officially registered domestic partners. California does not recognize the concept of a “common-law” marriage.
When community property is passing to a surviving spouse, a full probate is often unnecessary. A spousal property petition can confirm the transfer through a simpler court process. Martin H. Bayer, the firm’s probate attorney, sees a recurring version of this problem with Bay Area homes: a married couple owns a house, one spouse dies, and nobody does anything with the title. Years later the second spouse dies, and the family discovers they may be facing two estates instead of one. A spousal property petition can often be used to confirm that the first spouse’s interest passed to the survivor, so that only the second estate needs to be probated.
The Surviving Spouse’s Share of Separate Property
For separate property, section 6401(c) gives the surviving spouse a share that depends on who else survives:
| Who else survives the decedent | Spouse’s share of separate property |
|---|---|
| No children, grandchildren, parents, siblings, or nieces and nephews | All of it |
| One child (or the descendants of one deceased child) | One-half |
| No descendants, but a parent, or siblings or their descendants | One-half |
| Two or more children, or one child plus descendants of a deceased child | One-third |
Here is how that plays out. Suppose a San Jose woman dies without a will, survived by her husband and two adult children. The family home was bought during the marriage with both spouses’ salaries, so it is community property and goes entirely to her husband. She also had a brokerage account she inherited from her mother and never commingled. That account is separate property, so her husband takes one-third and each child takes one-third.
The distinction between the two types of property is not always clean. Refinances, remodels paid for with community funds, and accounts that mixed inherited money with paychecks can all blur the lines, and characterization disputes are among the most common sources of conflict in intestate estates.
When There Is No Spouse: The Order of Inheritance
Whatever does not go to a surviving spouse (or the entire estate, if there is no spouse) passes under Probate Code section 6402. Each level inherits only if no one survives at the level above it:
- Issue. Children, and the descendants of any child who died first.
- Parents. Split equally if both are living.
- Issue of parents. Brothers and sisters, and the children or grandchildren of siblings who died first.
- Grandparents or their issue. Grandparents, then aunts, uncles, and cousins.
- Issue of a predeceased spouse. For example, stepchildren who were the children of a spouse who died before the decedent.
- Next of kin. The nearest relatives by degree, with a preference for those claiming through the closest common ancestor.
- Parents of a predeceased spouse or their issue. Former in-laws and their descendants.
Only if this entire chain comes up empty does the estate pass to the State of California under section 6404, a result called escheat. It is rare, but it does happen with decedents who were truly alone.
How Shares Pass to Grandchildren, Nieces, and Nephews
When some members of a generation have died, California uses the method in Probate Code section 240 to divide shares. The estate is split at the first generation that has a living member, and the share of anyone in that generation who died is divided among their descendants.
Say a widower dies with three children, but one daughter died years earlier and left two children of her own. The estate is divided into three shares. Each surviving child takes one-third, and the two grandchildren split their mother’s third, so each receives one-sixth.
If all three children had died first, the division would start at the grandchild generation instead, and every grandchild would take an equal share regardless of which parent they came through.
Rules Families Often Miss
The remaining sections of the intestacy chapter fill in details that come up more often than people expect:
- The 120-hour survival rule (section 6403): An heir who does not survive the decedent by at least 120 hours is treated as having died first. This matters in accidents and in families where two relatives die within days of each other. The rule does not apply if it would cause the estate to escheat to the state.
- Property from a predeceased spouse (section 6402.5): If the decedent left no spouse and no descendants, but had a spouse who died within 15 years (for real property) or 5 years (for certain personal property), the portion of the estate that came from that earlier spouse may go to the earlier spouse’s family instead. This rule regularly surprises siblings who assumed they would inherit everything.
- Half-blood relatives (section 6406): Half-siblings inherit the same share as full siblings.
- Children born after death (section 6407): A relative conceived before the decedent died but born afterward inherits as if born during the decedent’s lifetime.
- Lifetime gifts and debts (sections 6409 and 6410): A gift made during life counts as an advance on an heir’s inheritance only if it was documented in writing as an advancement. A debt an heir owed the decedent is charged against that heir’s share.
- Citizenship (section 6411): An heir is not disqualified for not being a U.S. citizen. For families with relatives abroad, this is worth knowing, though locating and notifying heirs overseas adds real time to the case.
- Double relationships (section 6413): Someone related through two lines of the family takes only one share.
- Stepchildren and foster children: They do not inherit by default. Under Probate Code section 6454, a stepchild or foster child can inherit only if the relationship began when the child was a minor, lasted throughout both lives, and there is clear and convincing evidence the adult would have adopted the child but for a legal barrier. Legally adopted children inherit exactly like biological children.
Many of these rules are very nuanced and we have not covered every variation here. You should consult with a qualified attorney if you think any of these may apply to your situation.
Who Manages the Estate When There Is No Will?
With no will, there is no named executor. The court appoints an administrator, following a priority list that starts with the surviving spouse or domestic partner, then children, then other relatives. Most of the time the administrator is a family member. The court will usually require the administrator to post a bond unless the heirs waive it.
The administrator is entitled to statutory compensation, and many families are surprised to learn it is calculated on exactly the same percentage schedule as the attorney’s statutory fee. As Martin Bayer puts it, the personal representative and the attorney are each entitled to the same calculation under the Probate Code, which effectively doubles the ordinary fee schedule.
If there is no one willing or able to administer the estate or if the parties cannot agree to an administrator, the court may appoint a professional fiduciary as the administrator instead.
Does Every Intestate Estate Need a Full Probate?
Not necessarily. Bayer’s first question at an initial consultation is whether probate is really required at all. For deaths on or after April 1, 2025, heirs can collect personal property worth up to $208,850 with a small estate affidavit under Probate Code section 13100, without going to court. A separate petition under section 13151 can transfer a decedent’s primary residence worth up to $750,000.
In Santa Clara County, though, the primary residence limit rules out most homes, so a house left without a will or trust usually means formal probate, filed at the Downtown Superior Court at 191 North First Street in San Jose. Our article on what happens to a house during probate covers what families can expect while the case is pending.
Probate Is Not Always the Villain
Probate has a reputation as something to avoid at all costs. Bayer takes a more nuanced view. Probate is rigid and court-supervised, and that supervision is precisely what protects heirs. Court staff attorneys review the filings, and the judge confirms that each heir receives what the law says they are entitled to. Compare that to a trust with three children where one sibling serves as trustee and no court is watching. For an intestate family where relationships are strained, or where some heirs are distant relatives who barely know each other, the structure of probate can prevent the kind of self-dealing that would otherwise be too expensive to pursue.
If minor children are among the heirs, their shares cannot simply be handed over. Our article on protecting minor children’s inheritances in California explains the options.
Talk to a San Jose Probate Attorney
Intestate succession looks mechanical on paper, but the answers depend on questions that are rarely simple: whether property is community or separate, who all the heirs are, and whether a shortcut procedure applies. The Dayton Law Firm, P.C. represents administrators and heirs in probate matters in the San Francisco Bay Area, Silicon Valley, and throughout California. If a loved one has died without a will, contact our office or call 408-437-7570 to schedule a free consultation about the estate and your rights as an heir.
When a Santa Clara County family opens a probate case, one of the first things the court does is appoint someone to run the estate. That person is called the Personal Representative, and understanding this role, who qualifies, what they’re required to do, and what happens if they get it wrong, is often the first real question families ask when a loved one passes away owning property in San Jose or elsewhere in the Bay Area.
Note: The content in this article is to be considered an overview only, and does not constitute legal advice. Every situation is different, and the law may change. Please consult a qualified California attorney about your specific circumstances before taking action.
Personal Representative: The Umbrella Term
“Personal Representative” is the term California law uses to describe whoever is legally authorized to administer a decedent’s estate through the probate court. It covers two distinct roles that people often use interchangeably but that actually depend on how the decedent died.
Executor: Named in a Will
An executor is the person the decedent specifically named in their will to handle the estate. If someone in San Jose signs a will and names their eldest daughter as executor, that daughter has first right to serve, assuming she’s willing and legally qualified. The probate court still has to formally appoint her and issue what are called letters testamentary, but the decedent already made the choice.
Administrator: No Will, or No Named Executor
An administrator steps in when there’s no will (intestate succession), when the will fails to name an executor, or when the named executor can’t or won’t serve. In these cases, California Probate Code section 8461 sets out a priority order for who the court will appoint, generally starting with the surviving spouse or domestic partner, then children, then other relatives in descending order, with the public administrator as a last resort. Once appointed, this person receives letters of administration rather than letters testamentary, but their authority and responsibilities are functionally the same as an executor’s.
In practice, most San Jose families have someone willing to serve. It’s rare for a probate matter to move forward without a person stepping into this role, and it’s usually a family member working through that priority order rather than an outside professional. Private professional fiduciaries exist for situations where no suitable family member is available, though many attorneys who focus on family estates see less of this than the volume of California probate filings might suggest.
How Someone Becomes a Personal Representative
Appointment isn’t automatic, even for a named executor. The proposed Personal Representative must file a petition with the probate court, which in Santa Clara County means Santa Clara County Superior Court, along with the original will if one exists. The court schedules a hearing, requires notice to heirs and beneficiaries, and only then issues letters authorizing the person to act.
This is also the point where an initial and important question gets asked: is a full probate even required? Depending on the size and composition of the estate, a full court-supervised case might not be necessary. Smaller estates, or those involving only specific assets like a bank account under a statutory dollar threshold, may qualify for a simplified petition instead. The distinction between how personal property and real property are treated under these simplified procedures matters quite a bit, and it’s worth confirming with an attorney before assuming a full probate is unavoidable.
Core Duties of the Personal Representative
Once appointed, a personal representative takes on fiduciary duties to the estate’s heirs, beneficiaries, and creditors. The core responsibilities include:
Marshaling Assets and filing an Inventory & Appraisal
California Probate Code §8800 requires the Personal Representative to file an inventory and appraisal of estate assets within 4 months after Letters are issued. Strict enforcement of this deadline varies by county. Some Bay Area counties are fairly relaxed about it in practice, while others, including San Benito and Santa Cruz, actively enforce it and will schedule an order to show cause hearing if it’s filed late. In all cases, the Personal Representative should not assume local flexibility applies and should make every effort to adhere to this requirement or explain to the Court why the requirement cannot be met.
Notice to Creditors and the Public
The Personal Representative must publish notice of the probate proceeding in a newspaper of general circulation and file proof that the publication happened. Before the hearing, they must also give notice to everyone entitled to notice under the will or intestacy rules. After they are appointed, they must also give direct notice to known creditors and to anyone entitled to notice under the will or intestacy rules. This is important because it starts a timer that limits a creditor’s claim filing deadline.
Managing and Protecting Estate Assets
This includes securing property, maintaining insurance, managing bank accounts, and generally acting as a prudent steward of everything in the estate until distribution.
Paying Valid Debts and Taxes
Before beneficiaries receive anything, the estate’s legitimate debts, taxes, and administration expenses have to be resolved.
Final Distribution
Once the court approves a final accounting, the Personal Representative distributes the remaining assets according to the will or California’s intestate succession rules.
Bond Requirements
California Probate Code section 8480 generally requires every appointed personal representative to post a bond before letters are issued. The bond protects beneficiaries and creditors against mismanagement or misconduct by the person running the estate.
A bond can be waived under Probate Code section 8481 if the will specifically waives the requirement, or if all beneficiaries agree in writing to waive it. Even then, the court retains discretion to require a bond anyway if there’s good cause, for example, if the proposed personal representative lives outside California. When a will affirmatively requires a bond, that requirement generally can’t be waived by the beneficiaries.
Compensation for Personal Representatives
California sets personal representative compensation by statute rather than by private agreement. Under Probate Code section 10800, the personal representative is entitled to a percentage-based fee calculated on the value of the estate they account for: 4 percent of the first $100,000, 3 percent of the next $100,000, 2 percent of the next $800,000, tapering down from there on larger estates.
What surprises a lot of people, including some who have handled the process before, is that the estate’s attorney is entitled to that exact same fee schedule under Probate Code section 10810. So, a family member serving as personal representative and the probate attorney they hire can each collect the same statutory percentage, meaning total ordinary fees on a probate estate are effectively double the single schedule. Many family members who are also beneficiaries choose to waive their own statutory fee. A key consideration is that the fee is taxable income to them while an inheritance generally isn’t.
Liability and Removal
Because the role carries fiduciary duties, a Personal Representative who breaches those duties, through self-dealing, mismanagement, missed deadlines, or simple negligence, can be held personally liable to the estate. The court can surcharge a personal representative for losses caused by a breach, and in serious cases, remove them from the role entirely.
This is a common reason families sometimes assume probate is something to avoid at all costs, but that’s not always the right conclusion. Probate is a rigid, court-supervised process precisely because of these fiduciary obligations. Every accounting gets reviewed by court staff, and every distribution is subject to judicial oversight. Compare that to a trust administered by a single family member trustee with far less built-in scrutiny. For families concerned about fairness among heirs, that level of court oversight is sometimes a genuine advantage rather than a burden.
Common Mistakes When Personal Representatives Go It Alone
Personal representatives who handle a California probate without an attorney, appearing “pro per,” run into predictable trouble. The most common missteps include missing filing deadlines, failing to publish notice properly, failing to file proof of that publication, missing required affidavits, and failing to give timely and complete notice of hearing dates to everyone entitled to receive it. Any one of these errors can delay a case by months or expose the personal representative to personal liability.
Serving as Personal Representative in Santa Clara County
If you’ve been named executor in a will or you’re next in line to serve as administrator for a family member’s estate in San Jose or elsewhere in Santa Clara County, understanding these obligations before you accept the role matters. The Dayton Law Firm, P.C. guides personal representatives through every stage of California probate administration, from the initial petition through final distribution, so you can meet your fiduciary duties with confidence and avoid the mistakes that create liability. Contact our office to schedule a consultation and discuss your specific situation.
When a loved one dies owning property in Santa Clara County, the estate typically has to pass through the Probate Division of the Santa Clara County Superior Court before anything can be transferred to heirs. Given the median home value across San Jose, Sunnyvale, and the rest of the county, even a modest single-family house can push an estate well past the point where informal transfers are an option. Understanding what that court process actually looks like, where to file, what deadlines apply, and what mistakes tend to derail self-represented families, can save months of delay and unnecessary expense.
Note: The content in this article is to be considered an overview only, and does not constitute legal advice. Every situation is different, and the law may change. Please consult a qualified California attorney about your specific circumstances before taking action.
Where Probate Cases Are Filed in Santa Clara County
Probate matters in Santa Clara County are handled at the Downtown Superior Court, located at 191 North First Street in San Jose. The Probate Clerk’s Office sits in Room 107 of that courthouse, and it is a separate window from the general civil clerk, a detail that trips up more than a few people filing on their own for the first time. The Probate Division can be reached at (408) 882-2100, with phone service available Monday through Thursday from 8:30 a.m. to 3:00 p.m. and Friday mornings until noon.
Santa Clara County accepts e-filing for probate matters through approved electronic filing service providers, which has made the initial filing process faster than it was even a few years ago. That said, certain documents, including the original will, still need to be delivered to the court in hard copy.
Filing is not optional if you are simply in possession of the will. Under Probate Code section 8200, anyone holding a decedent’s will is required to lodge it with the superior court in the county where the decedent lived within 30 days of learning of the death, even if no probate case is opened right away. There is no fee just to deposit the will.
Is a Full Probate Case Actually Required?
Before filing a Petition for Probate, it is worth asking whether a full court case is necessary at all. Not every estate needs the complete process. California law provides several shortcuts depending on the type and value of the assets involved.
For smaller estates made up mostly of personal property, such as bank accounts, vehicles, and other non-real-estate assets, an affidavit procedure under Probate Code section 13100 may allow heirs to collect assets using a sworn declaration rather than a court petition. For real property, a separate petition process applies to a decedent’s primary residence, and a simpler affidavit procedure applies to smaller amounts of non-primary real property. The dollar thresholds for both of these paths were expanded by Assembly Bill 2016 and have since adjusted again, so the correct figure depends on the date of death. We break down the current numbers and asset categories in detail in What Assets Are Subject to Probate in California?
There is also a narrower option for married couples. If a surviving spouse needs to clear title to jointly held property, a spousal property petition can often resolve that without a full probate case. This comes up often with houses. It is common for a couple to own a home together and never update anything when the first spouse dies. By the time the second spouse passes, the family is left having to probate two estates instead of one, unless a spousal property petition was used to sort out title after the first death.
If a full probate case is required, the process below applies.
Filing the Petition for Probate
The petition process starts with Form DE-111, the Petition for Probate, filed with the original will (if one exists), a certified copy of the death certificate, and Form DE-147, which sets out the duties and liabilities of the personal representative. The filing fee is $435 in most California counties, including Santa Clara, under Government Code section 70650. A matching $435 fee applies later, when the case reaches the petition for final distribution.
The petition also typically requests authority under the Independent Administration of Estates Act, commonly called IAEA. Santa Clara County courts routinely grant this authority, and it matters more here than in many counties because it allows the personal representative to sell real property and handle a range of estate business without returning to court for a separate hearing on every transaction. In a county where a single-family home can be the majority of an estate’s value, that authority often determines how efficiently the case moves.
Notice to Heirs and Publication Requirements
Once the petition is filed, California law requires formal notice to all interested parties before the court will hold a hearing. Notice of the hearing on a form DE-121, must be mailed to all heirs, beneficiaries, and other interested parties at least 15 days before the scheduled hearing date. Proof of service must be filed with the court before the hearing as well.
In addition to mailed notice, the petitioner must publish notice of the hearing in a newspaper of general circulation in Santa Clara County. The hearing date must be published for 3 days. The first publication must be at least 15 days before the hearing and there must be at least 5 days between the first publication and the last. This publication step is one of the most common places self-represented petitioners lose time. Missing the newspaper publication, or failing to file proof that the publication actually happened, is a common reason why a hearing gets continued rather than granted on the first date. The same is true for missing a notice deadline to even one interested party, or overlooking someone who is legally entitled to notice in the first place.
Santa Clara County’s probate examiners review filings closely before the hearing date, and cases with incomplete notice or publication documentation typically generate examiner notes that need to be resolved before a judge will act. Catching these issues before filing, rather than after an examiner flags them, is where working with an attorney tends to pay for itself.
The Hearing and Appointment of the Personal Representative
At the hearing, assuming there are no objections and the paperwork is in order, the court appoints the personal representative, either the executor named in the will or an administrator if there is no will. Once appointed, that person receives Letters, either Letters Testamentary or Letters of Administration, which is the document that actually confers legal authority to act on behalf of the estate. Banks, title companies, and other institutions will generally want to see certified copies of the Letters before releasing assets or allowing a transaction to proceed.
Inventory and Appraisal
After receiving Letters, the personal representative has four months, roughly 120 days, to file a complete Inventory and Appraisal listing the estate’s assets under Probate Code section 8800. Cash and bank accounts can be valued directly by the personal representative, but everything else, real property, securities, business interests, and personal property of significant value, has to be valued by a court-appointed probate referee. The referee’s compensation is set by statute at a small percentage of the appraised value of the non-cash assets, subject to a statutory minimum and cap.
Enforcement of the 120-day inventory deadline varies noticeably by county, and this is worth knowing if your family has property or a case pending in more than one jurisdiction. Santa Clara County does not aggressively enforce this deadline the way some neighboring counties do. Santa Cruz and San Benito counties, by contrast, tend to follow up quickly when the inventory is late, sometimes with an order to show cause requiring a court appearance. That does not mean the Santa Clara deadline can be safely ignored. It remains the statutory requirement, and delay can still create problems with creditors, beneficiaries, and the eventual accounting. It simply means the administrative consequences of missing it show up differently depending on where the case is filed.
The Creditor Claim Period
Separately from the inventory deadline, California law gives creditors a four-month window to file claims against the estate, running from the date Letters are issued (or 60 days from actual notice to a known creditor, if that is later). This creditor period functions as a hard floor under the whole timeline. Even in a straightforward case with no disputes, the estate generally cannot be closed until this window has run and any valid claims have been addressed. Between the notice requirements, the inventory process, and the creditor period, most Santa Clara County probate cases run somewhere between nine and eighteen months from the initial filing to final distribution, with cases involving real property tending toward the longer end of that range.
Common Pitfalls for Self-Represented Petitioners
Families handling probate without an attorney tend to run into the same handful of problems: missed filing deadlines, incomplete newspaper publication or missing proof of publication, notice that never reaches every required party, and hearing dates that get pushed back because an affidavit or supporting document was never filed. None of these mistakes are unusual, and none of them are typically fatal to the case, but each one adds weeks or months to a process that already runs long by default.
It is also worth knowing that the personal representative is entitled to compensation under the same statutory fee schedule that applies to the estate’s attorney, calculated on the same percentage basis under the Probate Code. Many family members serving as executor do not realize this and end up doing the work without seeking the fee they are legally owed.
If you are currently serving as a personal representative in Santa Clara County, or trying to determine whether a full probate case is even necessary, our office works with families throughout Santa Clara, San Mateo, Alameda, and San Benito counties on exactly this kind of estate administration. For related reading on what happens to a family home during this process, see What Happens to Homes During Probate?