What Happens If You Don’t Have a Trust? Understanding Probate in California

If you own a home in California and don’t have a trust, your estate could be headed for probate. And while it’s not a word most people like to hear, understanding what probate is—and how to avoid it—can make a huge difference for your loved ones.

What Is Probate?

Probate is the legal process through which the court validates a deceased person’s will (if they have one), appoints an executor, and oversees the distribution of assets—including real estate.

If there’s no will, the court distributes the estate based on California’s intestate succession laws. Either way, probate is slow, public, and can be expensive.

The Downsides of Probate

1. It’s Expensive

California’s statutory probate fees are based on the gross value of the estate—not the equity. That means if your home is worth $700,000, the executor and attorney could each earn around $17,000, even if there’s still a mortgage.

Additional costs may include:

• Court filing fees
• Appraisal fees
• Publication fees
• Bond premiums (if no executor is named)

2. It’s Time-Consuming

The average probate process in California takes 9 to 18 months—and that’s if everything goes smoothly. Delays are common, especially if heirs disagree or paperwork is missing.

3. It’s Public

Once a probate case is filed, it becomes part of the public record. That means anyone—including creditors or opportunists—can view the details of the estate.

What Happens to the Property?

During probate:

• The property can’t be sold until the court gives permission.
• The executor may need to petition for full authority if the home is to be listed and sold.
• Heirs may have to wait over a year before receiving their share of the proceeds.

If the property is not in a trust, it’s legally tied up—no matter how clear the family’s wishes might be.

How to Avoid Probate (Hint: Get a Trust)

The easiest way to avoid probate is to place your home in a revocable living trust. This allows your property to transfer directly to your beneficiaries without court oversight.

There are other options, including:

• Joint Tenancy with Right of Survivorship: While this avoids probate for the first death, the surviving owner will still face probate unless they’ve made other arrangements.
• Transfer-on-Death (TOD) Deeds: These can bypass probate, but they come with limitations—such as lack of control during incapacity and potential disputes if the beneficiary dies before you.
• Community Property with Right of Survivorship (for married couples): This can allow a spouse to inherit property without probate—but it only works for one transfer and does not address what happens after the second spouse passes.

Why Trusts Offer More Flexibility

• They allow for multi-generational planning—you can designate what happens after your heirs inherit the property.
• They work during your lifetime—your trustee can step in if you become incapacitated.
• They allow more detailed control—you can set conditions for distribution, protect beneficiaries, and update the trust as your life evolves.

Bottom line: Probate is avoidable—and while there are shortcuts, a trust is the most flexible, comprehensive, and protective option for most California homeowners.

Want to learn how to structure your estate to skip the court system? I can connect you with trusted professionals and help you navigate next steps.

Let’s talk. Your future self—and your heirs—will thank you.