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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 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?
Talk to any attorney who works in estate planning and probate, and you’ll hear plenty of stories just like this: a prospective client walks into the office holding a shoebox (or a folder, or an envelope) full of paperwork. It’s all the information they have about a loved one’s estate.
That story repeats itself across the Bay Area more often than it should, and it’s almost always avoidable. California probate is public, slow, and expensive by design, but state law also gives families several well-established ways around it. Below are seven of the most useful, along with a candid look at when skipping probate isn’t actually the right move.
Why Bay Area Families Should Care About Probate in the First Place
California probate fees are set by statute as a percentage of the gross value of the estate, not the equity. If you own a home in San Jose or Palo Alto worth $1.5 million with a $600,000 mortgage, probate fees are calculated on the full $1.5 million. Statutory attorney and executor fees on an estate that size can each run close to $28,000, for a combined $56,000 or more, before court costs, appraisal fees, and the months of delay that come with a crowded probate calendar.
Add in the fact that Bay Area home values push even modest, single-property estates well past California’s small estate thresholds, and it’s easy to see why probate avoidance is one of the most searched estate planning topics among homeowners here. The strategies below aren’t exotic. They’re the standard toolkit California attorneys use every day, and most families can implement several of them at once.
1. Set Up a Revocable Living Trust
A revocable living trust is the workhorse of California probate avoidance, and for good reason: it’s the only strategy on this list that handles an entire estate, of any size and any asset type, in one document.
Here’s the mechanic. You create the trust, then retitle your assets, your house, investment accounts, and other property, into the name of the trust. You typically serve as trustee during your lifetime, so you keep full control and can amend or revoke the trust at any time. When you pass away, your named successor trustee distributes the assets according to your instructions, without ever going through probate court.
The living trust California probate exemption only works if the trust is actually funded. This is the step people skip, and it’s the reason so many trusts end up doing nothing. A trust document sitting in a drawer while the house deed still lists your name individually accomplishes nothing; the house still has to go through probate. Funding means recording a new deed for real property, retitling brokerage and bank accounts, and updating beneficiary paperwork so everything actually sits inside the trust.
For Bay Area families with real estate, a living trust is usually the foundation everything else builds on. (For a deeper look at how trust funding works and what happens if you die with an unfunded trust, see our companion guide to California living trusts.)
2. Hold Property in Joint Tenancy or as Community Property with Right of Survivorship
If you own real estate or a bank account jointly with someone else, and the title includes “joint tenancy” or, for married couples and registered domestic partners, “community property with right of survivorship,” the asset passes automatically to the surviving owner when one owner dies. No probate, no court filing, just a certified death certificate and a straightforward transfer.
This is one of the simplest probate avoidance strategies available, and many Bay Area couples already use it for their primary residence without realizing why it matters. But it has real limitations. Joint tenancy only solves the problem for that one asset, it exposes the property to the co-owner’s creditors and legal disputes during both owners’ lifetimes, and it only works cleanly for two eventual outcomes: the asset skips probate entirely if it’s the last survivor’s estate that has a plan, or it lands right back in probate once the second owner dies without another mechanism in place. Community property with right of survivorship carries an added tax advantage for married couples: the entire asset, not just half, gets a stepped-up basis at the first spouse’s death, which can substantially reduce capital gains tax if the survivor later sells.
Joint tenancy works best as a supplement to other planning, not a replacement for it.
3. Record a Transfer on Death Deed
California’s revocable Transfer on Death Deed, sometimes called a TOD deed or beneficiary deed, lets you name a beneficiary for a specific piece of real property, a house, condo, or small residential parcel, who inherits it automatically at your death. You keep full ownership and control while you’re alive, including the right to sell the property or revoke the deed entirely, and the beneficiary has no rights to the property until you pass away.
The transfer on death deed California statute (Probate Code sections 5600 through 5696) requires the deed to be signed, notarized, and recorded with the county recorder within 60 days of signing. Miss that window and the deed is invalid. The form itself is statutory, meaning you have to use the specific language the Probate Code requires, and errors in execution are one of the most common reasons these deeds get challenged after death.
A TOD deed is a good fit for a single piece of property when a full trust feels like overkill, for example, a rental property you want to leave directly to one adult child. It’s a poor fit if you want to leave the property to multiple beneficiaries with different shares, or if you want any conditions attached to the gift, since the statutory form doesn’t accommodate much nuance. Worth noting: this law has a sunset provision and has been extended by the legislature before, most recently through 2032, so it’s worth confirming current status if you’re reading this well after publication.
4. Update Beneficiary Designations on Retirement Accounts, Life Insurance, and Financial Accounts
Retirement accounts (401(k)s, IRAs), life insurance policies, and many brokerage and bank accounts pass outside probate automatically, as long as you’ve named a beneficiary and kept that designation current. Banks and brokerages also let you add a “payable on death” or “transfer on death” designation directly on the account, which functions the same way for cash and securities that a TOD deed does for real estate.
This is the easiest probate avoidance strategy to execute and the most commonly neglected one. We regularly see accounts still listing an ex-spouse, a deceased parent, or no beneficiary at all, which sends the asset straight into probate regardless of how well the rest of the estate is planned. It costs nothing and takes minutes to review and update every designation you hold, and it’s worth doing anytime you experience a divorce, remarriage, birth, or death in the family.
One caution: beneficiary designations override what your will or trust says. If your trust says everything gets split evenly among three children but your largest retirement account still names only one of them, that account goes to the one named person, full stop.
5. Use California’s Small Estate Affidavit
If the deceased person’s personal property, cash, vehicles, stock, and personal belongings excluding certain real estate, falls at or below California’s statutory threshold, heirs can collect it using a small estate affidavit rather than opening a probate case. As of April 2026, that threshold sits at $239,700, and it adjusts periodically for inflation, so it’s worth confirming the current figure before relying on it.
There’s also a separate, higher threshold and simplified court petition for real property, and a mandatory 40-day waiting period after death before the affidavit can be presented to banks or other asset holders. Given Bay Area real estate values, this route rarely covers a full single-family home on its own, but it’s useful for smaller estates, a parent’s remaining bank accounts and personal property after a home has already passed through a trust or TOD deed, for instance.
6. File a Spousal or Domestic Partner Property Petition
When a surviving spouse or registered domestic partner is inheriting property, California offers a simplified court procedure called a spousal (or domestic partner) property petition. It’s faster and less expensive than full probate, doesn’t require a probate referee appraisal for community property, and can cover both real estate and personal property.
It isn’t quite “avoiding” probate court entirely, since it still involves a court filing and a hearing, but it’s a lighter process reserved specifically for surviving spouses and partners, and it’s worth knowing about even if the rest of your planning relies on a trust, since it can serve as a backstop for any asset that wasn’t properly transferred into the trust before death.
7. Make Lifetime Gifts
The most direct way to keep an asset out of probate is to no longer own it at death. Gifting property, cash, or other assets to family members during your lifetime removes them from your estate entirely. For smaller gifts, this is straightforward. Larger gifts require more care: gifting appreciated real estate during your lifetime forfeits the stepped-up basis your heirs would receive if they inherited it instead, which can create a substantial capital gains tax bill down the line, and gifts of real estate can also trigger a property tax reassessment under California’s Proposition 19 rules in ways that inheriting the same property might not.
Lifetime gifting is best used selectively, for specific assets or specific family circumstances, rather than as a general-purpose probate avoidance strategy. It’s worth running the numbers with an attorney or accountant before transferring anything significant.
When Avoiding Probate Might Not Be the Right Call
Probate avoidance has become such a common goal that it’s worth pausing on the cases where it isn’t actually the best answer.
If your estate is small and consists mostly of a modest bank account and personal belongings, the cost of setting up and funding a trust may not be worth it when the small estate affidavit already covers you for free. If you’re young, healthy, and your assets are likely to change substantially over the next decade, a will paired with basic beneficiary designations may serve you better than a trust you’ll need to keep amending. And if you have complicated family dynamics, a blended family, a disinherited relative, a beneficiary with creditor or capacity issues, sometimes probate’s court supervision actually provides useful protection: a judge reviewing the accounting, formal notice to interested parties, and a built-in dispute resolution process that an unsupervised trust administration doesn’t offer.
There are also situations where certain probate avoidance tools actively create problems. Adding a child to your home’s title as a joint tenant to avoid probate, for example, is a common piece of folk-planning advice that can trigger gift tax filing requirements, expose your house to that child’s creditors or divorce, and cause you to lose part of the capital gains tax exclusion you’d otherwise get on a future sale. The right combination of tools depends entirely on the size of your estate, the types of assets you hold, and your family situation, which is exactly why a one-size-fits-all trust package sold online often creates more cleanup work than it prevents.
Putting the Right Combination Together
Most Bay Area families end up using two or three of these strategies together rather than relying on just one: a funded revocable living trust for the house and major accounts, updated beneficiary designations on retirement and life insurance accounts, and a spousal property petition or small estate affidavit as a backstop for anything that falls outside the trust. The right mix depends on what you own, who you’re leaving it to, and how your family works.
If you’re a Bay Area homeowner trying to figure out which of these strategies actually fits your situation, whether that’s setting up a new living trust, funding a trust you already have, or reviewing beneficiary designations you haven’t looked at in years, a short consultation is usually enough to map out a plan. Reach out to schedule a time to talk through your estate.
If you’ve started researching what happens to a loved one’s estate, you’ve probably run into a confusing mix of numbers, forms, and terms that all sound like they mean the same thing but don’t. Probate. Small estate affidavit. Non-probate assets. It’s a lot.
Here’s the question that actually matters, and it’s the same one our attorneys ask at the very start of every initial consultation: does this estate need to go through probate at all?
The answer depends almost entirely on what the decedent owned and how they owned it. Some assets are required to pass through the California probate court. Others skip it entirely, regardless of what a will says. And a fair number of estates fall into a middle category where a simplified court procedure applies instead of full probate. Knowing which bucket your situation falls into can save months of court proceedings and thousands of dollars in fees.
The Basic Rule: Assets Held in the Decedent’s Individual Name
As a general rule, probate is required for any asset that was titled solely in the decedent’s name at death, with no beneficiary designation and no co-owner with survivorship rights attached. That includes:
- A house, condo, or other real property held in the decedent’s name alone
- Bank and brokerage accounts with no payable-on-death or transfer-on-death designation
- Vehicles, boats, and other titled personal property
- Business interests owned individually
- Personal belongings, collections, and other tangible property without a named beneficiary
If an asset falls into one of these categories, it typically has to go through the probate process before it can be legally transferred to an heir or beneficiary, even if there’s a valid will naming exactly who should receive it. A will directs where an asset goes. It doesn’t avoid the court process required to get it there.
California’s Small Estate Threshold
Not every estate needs a full probate case, though. California allows estates below a certain dollar value to use simplified procedures instead.
As of this writing, the threshold is $208,850 for deaths occurring on or after April 1, 2025, and this is likely to remain the case until 2028. We have seen the figure $239,700 posted but have not been able to corroborate this with California’s Judicial Council, which is the agency that sets the fee. Always check with your attorney, as these numbers may change.
Previously, this threshold was $184,500 for deaths between April 2022 and March 2025. The Judicial Council adjusts the figure periodically for inflation under Probate Code section 13100. If the decedent’s personal property in California falls at or under the current threshold amount, successors may be able to use a Small Estate Affidavit to collect bank accounts, investment accounts, and other personal property without opening a probate case at all.
A few important caveats:
The threshold is based on gross value, not equity. A bank account with $150,000 in it counts as $150,000. Debts and liens don’t reduce the number for this calculation.
Real property has its own, separate limit. The dollar threshold for personal property is not the same as the threshold for real estate. A small-value real property affidavit under Probate Code section 13200 currently applies only to California real property worth $69,625 or less, a fraction of the personal property threshold. Most homes, even modest ones, exceed that figure by a wide margin.
A separate path exists for a primary residence. Since AB 2016 took effect, families can use a Petition to Determine Succession to Real Property (Judicial Council form DE-310) to transfer a primary residence valued at up to $750,000, so long as the estate’s other personal property still falls under the small estate threshold. This has made a difference for Bay Area families, where even a modest starter home in Santa Clara County can carry a $750,000-plus assessed value.
There’s a mandatory waiting period. Successors generally must wait at least 40 days after the date of death before presenting a Small Estate Affidavit to a bank or other asset holder.
Assets That Skip Probate Entirely
Then there’s a whole category of assets that never touch the probate court, no matter how large the estate is or what the will says. These are sometimes called non-probate assets, and they transfer by operation of law or contract rather than through a court process:
Assets held in joint tenancy. When two or more people own property as joint tenants with right of survivorship, the surviving owner automatically becomes the sole owner the moment the other joint tenant dies. No probate required. This is extremely common with married couples and Bay Area real estate, since many homeowners take title this way specifically to avoid probate on the first spouse’s death.
Assets with a named beneficiary. Life insurance policies, retirement accounts like 401(k)s and IRAs, and payable-on-death or transfer-on-death bank and brokerage accounts all pass directly to whoever is named on the beneficiary form, regardless of what the decedent’s will says. This is one of the most common estate planning mistakes we see: someone updates their will after a divorce or remarriage but forgets to update the beneficiary designation on an old 401(k), and the ex-spouse ends up inheriting the account anyway.
Property held in a living trust. Assets that have been properly transferred into a revocable living trust during the grantor’s lifetime are owned by the trust, not the individual, so they bypass probate entirely when the grantor dies. This is the primary reason trust-based estate planning has become so common in California, particularly for homeowners in Santa Clara County and the broader Bay Area, where a single piece of real estate can easily exceed both small estate thresholds on its own.
Community property passing to a surviving spouse. For married couples, California offers a Spousal Property Petition, a simplified court procedure (not a full probate) that can transfer community and separate property directly to a surviving spouse. This route comes up constantly with jointly owned homes where the couple never got around to formal estate planning. One spouse passes away, nothing happens to the title because there’s no urgency, and years later the second spouse dies. At that point, without a Spousal Property Petition, the family is stuck probating two estates instead of one.
Why This Matters More in the Bay Area Than Almost Anywhere Else
California’s probate thresholds haven’t kept pace with Bay Area real estate values, and that gap is exactly why probate has become so hard to avoid here without proactive planning. A single-family home in San Jose or anywhere in Santa Clara County can easily be worth several times the personal property threshold, and even the newer $750,000 primary residence exemption doesn’t stretch as far in this market as it does elsewhere in the state. For a lot of local families, the home is the estate, and its value alone can push a straightforward inheritance into full probate territory unless it was addressed ahead of time.
This is also where county-level practice can matter more than people expect. Local rules and enforcement vary. Santa Clara County, for instance, is comparatively relaxed about certain filing deadlines that neighboring counties enforce strictly, which means an estate that would draw scrutiny in one county might move more smoothly in another. It’s one more reason a probate estimate from a friend or relative in a different county isn’t a reliable guide to your own case.
What This Means for Your Estate Plan
If most of what you own is titled in your individual name with no trust, no joint ownership, and no updated beneficiary designations, your estate is likely headed for probate regardless of what your will says. The good news is that this is entirely within your control. A revocable living trust can hold your real estate and major assets outside of probate altogether, and reviewing beneficiary designations on retirement accounts and life insurance takes far less effort than most people assume.
If you’re already administering an estate and aren’t sure which category your loved one’s assets fall into, that’s exactly the kind of question worth answering before you file anything. Our guide to starting the probate process in California walks through the early steps in more detail.
Every estate is different, and the interaction between joint tenancy, trust funding, and California’s shifting statutory thresholds isn’t always intuitive. If you’re trying to figure out whether a specific asset, or an entire estate, needs to go through probate, our attorneys can walk through it with you and help you plan accordingly.