Handling Real Property After Death in California: Probate and Other Legal Options
Real property is often the most valuable asset a person owns, and it frequently determines whether a probate court proceeding is required after death. In California probate cases, how real property is transferred depends on several factors, including how title is held, the value of the property, whether there is an estate plan, and who the intended beneficiaries are.
California law provides several ways to transfer real property after death, ranging from full probate administration to streamlined court petitions and non-probate transfers. This article provides a general overview of the primary legal options for handling real property in California, including when probate is required and when it may be avoided.
1. Full Probate Administration in California
The most well-known method for transferring real property after death is a full probate administration. Probate proceedings are governed primarily by Division 7 of the California Probate Code (§ 7000 et seq.). When real property is titled solely in the decedent’s name and does not pass automatically by law—such as through a trust or joint tenancy—a probate court proceeding is often required.
In a full probate, the court appoints a personal representative (an executor or administrator) who is given legal authority to manage estate assets. The personal representative is responsible for identifying and collecting assets, paying valid creditor claims, and ultimately distributing property to beneficiaries or heirs (Cal. Prob. Code §§ 8400–8404, 9650). Real property may be distributed directly to beneficiaries or sold, depending on the circumstances and statutory requirements, and some sales require court confirmation.
One advantage of probate is court supervision, which can provide creditor protection and result in a clear chain of title. However, probate also has well-known downsides, including cost, delays, and procedural complexity. Attorney fees and personal representative compensation are set by statute and calculated based on the gross value of the estate, including the full value of real property, without regard to mortgages or equity (Cal. Prob. Code §§ 10800, 10810). When real property is the main asset, these fees can be significant, particularly if the estate has limited cash.
Despite these drawbacks, a full probate may be necessary or appropriate in certain situations, such as when there are title problems that require court resolution, disputes among heirs, anticipated creditor claims, or a need to sell property to pay debts or divide the estate fairly among beneficiaries.
Independent Administration of Estates Act (IAEA Authority)
Many probate cases proceed under the Independent Administration of Estates Act (IAEA) (§ 10400 et seq.), which allows the personal representative to administer the estate with reduced court oversight. Under IAEA authority, the personal representative may have greater flexibility, particularly with respect to selling real property. The court may grant either full or limited IAEA authority (Cal. Prob. Code § 10402).
With full IAEA authority, real property may be sold without prior court confirmation, provided that notice requirements are met and beneficiaries are given the opportunity to object (Cal. Prob. Code §§ 10580–10592). Limited authority still requires court confirmation of sales (Cal. Prob. Code § 10308). IAEA authority can significantly reduce delays and procedural hurdles, especially in active real estate markets. In some estates, however, greater court supervision may be advisable, particularly where there are conflicts or complex issues.
2. Spousal Property Petitions for Transferring Real Property
When a surviving spouse or registered domestic partner is the sole beneficiary, a spousal property petition can provide a very efficient alternative to full probate. Probate Code §§ 13500–13660 allow a surviving spouse or domestic partner to ask the court to confirm ownership of property passing to them as a result of the death.
Spousal property petitions are commonly used to clear title to a family residence after the first spouse’s death, even if the property was titled solely in the decedent’s name. This procedure may be used for community property, quasi-community property, and in some cases, separate property. Because the court can transfer title by order without a full probate administration, spousal property petitions are often a faster and more cost-effective option when available.
3. Small Estates Procedures for Real Property in California
Effective April 1, 2025, California significantly narrowed its summary procedures for transferring real property in small estates. Under the revised Probate Code, the primary summary procedure for real property is limited to a decedent’s primary residence with a gross fair market value of $750,000 or less. In these cases, a successor may file a petition to determine succession to the decedent’s primary residence, allowing the court to transfer title without a full probate administration (Cal. Prob. Code §§ 13150, 13151, 13154).
This procedure is available only if the property was the decedent’s principal residence at the time of death, at least 40 days have passed since death, and specific notice and evidentiary requirements are met. The court must make findings regarding both the value of the residence and the petitioner’s right to inherit before issuing an order transferring title.
Under current law, this summary procedure is no longer available for non-residential real estate or for property that does not qualify as a primary residence, regardless of value. Rental properties, commercial properties, vacant land, and secondary residences will generally require a formal probate or another transfer mechanism, such as trust administration. As before, transferring real property under this summary procedure always requires a court petition and order and is different from the affidavit process used for personal property under Probate Code § 13100.
One important consideration is that this summary procedure does not include a formal creditor claims process. Creditors are not required to file claims within a probate proceeding, and beneficiaries may take title subject to the decedent’s outstanding debts, whether secured or unsecured. Unlike a full probate, which resolves creditor claims and provides a statutory cutoff, this procedure may leave beneficiaries exposed to unresolved liabilities. Where significant debts are known or suspected, a formal probate may offer greater protection despite the availability of summary transfer.
4. Trust Administration and Heggstad Petitions (Probate Code § 850)
When real property is held in a revocable living trust, probate is generally avoided (Cal. Prob. Code § 13000). Instead, the successor trustee administers the trust and transfers or sells the property according to the trust’s terms, typically without court supervision.
It is common, however, for individuals to create a trust but fail to transfer title to real property into the trust during their lifetime. In those situations, a petition under Probate Code section 850, often referred to as a “Heggstad petition”, may be used to establish that the property is a trust asset (Estate of Heggstad (1993) 16 Cal.App.4th 943; Ukkestad v. RBS Asset Finance, Inc. (2015) 235 Cal.App.4th 156). If the petition is granted, the court orders the property into the trust, allowing it to be administered outside of probate. While this process requires a court hearing and evidence of intent, it is generally faster and less expensive than a full probate administration.
5. Transfer on Death (TOD) Deeds in California
California law allows certain residential real property to pass directly to named beneficiaries through a Revocable Transfer on Death (TOD) Deed (Cal. Prob. Code §§ 5600 et seq.). To be valid, a TOD deed must strictly comply with statutory requirements related to execution, recording, and timing (Cal. Prob. Code §§ 5624, 5630). When properly prepared and recorded, a TOD deed allows residential property to transfer automatically at death without probate.
TOD deeds can be useful in simple situations, but they are not without risk. Beneficiaries take the property subject to creditor claims, and disputes may arise if the TOD deed conflicts with other estate planning documents or is challenged based on capacity or undue influence (Cal. Prob. Code § 5672).
6. Joint Tenancy and Community Property with Right of Survivorship
Real property held in joint tenancy or as community property with right of survivorship passes automatically to the surviving owner upon death (Cal. Civ. Code § 682.1; see also Cal. Prob. Code § 5600). In most cases, recording an affidavit of death of joint tenant or spouse is sufficient to clear title.
While these forms of ownership avoid probate at the first death, they can also have unintended consequences, including loss of control, potential tax issues, or the unintentional disinheritance of children from prior relationships.
California law offers multiple legal pathways for transferring real property after death, including full probate administration, spousal property petitions, trust administration, and other probate-adjacent procedures. The appropriate option depends on how title is held, the type and value of the property, family circumstances, and whether the decedent had an estate plan.
Understanding how California probate and non-probate transfers work can help families avoid unnecessary delays, reduce costs, and ensure that real property passes with clear title. In many cases, early planning, or informed decision-making after a death, can significantly reduce the risk of future disputes.
Holborn Law can help you identify your potential probate related needs, find the best solutions, and draft the necessary documents. If you are interested and would like to have your potential case evaluated, call 1-844-HOLBORN (1-844-465-2676) or email us and we will be happy to assist you.
Disclaimer: This post is meant for general informational purposes only, and it is not to be construed as legal advice. As with any laws, information in this article is subject to change at any time. The post may constitute Attorney Advertising as defined by the rules of professional responsibility of some jurisdictions.
