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Common Probate Scenarios

Probate is the legal process through which a deceased person’s estate is administered, assets are distributed to beneficiaries, and outstanding debts and taxes are settled. In California, there are several common scenarios in which probate may be necessary.  As a Folsom lawyer who specializes in probate, here are the most common scenarios that I encounter:

  1. Death Without a Will (Intestate): When a person passes away without a valid will, their estate is subject to California’s intestate succession laws. The court will appoint an executor (also known as a “personal representative” in California) to manage the estate and distribute assets to heirs according to statutory guidelines.
  2. Valid Will: If the deceased left a valid will, the probate process still occurs, but it follows the instructions laid out in the will. The court will appoint a personal representative to oversee the estate’s administration.  If a personal representative is named in the will, that individual will be selected so long as they are willing to fulfill the responsibilities. 
  3. Small Estate: In California, if the total value of a deceased person’s probate estate (excluding certain exempt property) is less than $184,500 (as of 2023) it may qualify as a “small estate.” In such cases, a simplified probate procedure called “small estate administration” may be used to distribute assets without going through the full probate process.
  4. Claims and Debts: During probate, creditors and outstanding debts of the deceased must be addressed. Creditors have a limited time to file claims against the estate. The personal representative is responsible for evaluating these claims and paying valid debts from estate assets.
  5. Real Estate: If the deceased owned real property (such as a home) that is not held jointly with right of survivorship or in a trust, it typically goes through probate. The court may order the sale of real estate to satisfy debts or distribute the proceeds to beneficiaries.
  6. Challenges to the Will: Disputes over the validity of the will or its interpretation can lead to contested probate proceedings. This might involve claims of undue influence, lack of capacity, or improper execution of the will.
  7. Complex Estates: Estates with complex assets, such as businesses, multiple real estate holdings, or valuable collections, often require more time and effort to properly administer and distribute. These cases may involve the sale of assets or specialized valuation.
  8. Missing Heirs or Beneficiaries: Sometimes, locating and notifying all heirs or beneficiaries can be challenging, especially in cases where family members are estranged or the deceased had a large, extended family.
  9. Estate Tax Issues: California does not have a separate estate tax. However, all estates worth over $13.61m, as of 2024, will still be subject to a federal estate tax. Personal representatives must ensure compliance with state and federal tax laws and may need to file estate tax returns if applicable.
  10. Surviving Spouse’s Share: In California, a surviving spouse has the right to 50% of the community property of the estate, that is, any property acquired during marriage (other than inheritances or gifts). As such, even if the will does not provide for them adequately, the surviving spouse still has these rights. This can lead to disputes and legal proceedings.
  11. Guardianship for Minor Children: If the deceased person had minor children and there is no surviving parent with legal custody, the probate court will determine guardianship arrangements in accordance with the best interests of the children.


These are some common scenarios in California probate, but each case is unique and can vary based on the specific circumstances of the deceased’s estate and the applicable laws. Personal representatives, along with their legal counsel, must navigate these scenarios while adhering to California’s probate laws and ensuring that the deceased’s wishes (as outlined in a will, if one exists) are carried out.  If you have any questions about probate or are seeking an experienced Folsom probate lawyer to assist you, please contact us. 

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