EstateCalifornia estate planning rules
Last reviewed Oct 29, 2026 · How we research
Law tags:State lawFederal lawFederal + state
At a glance
At a glance| Question | Answer | |
|---|---|---|
| Probate always required? | No. Assets that are jointly owned, have a named beneficiary, or are in a trust or TOD deed usually skip probate. | Details |
| Small-estate / simplified option? | California has a small-estate affidavit after 40 days, with a dollar limit that is adjusted periodically (Prob. Code § 13100). | Details |
| TOD deeds allowed? | Yes | Details |
| State estate tax? | No (California State Controller’s Office – Estate Tax) | Details |
| State inheritance tax? | No | Details |
| Must file will with court? | Yes, the original must be delivered to the court. | Details |
| Medicaid look-back | 60 months (federal rule, applied by the state) | Details |
| Holographic (handwritten, unwitnessed) wills valid? | Yes, if the signature and material provisions are handwritten (Prob. Code § 6111). | Details |
Transfer on death deed allowed? Yes. California allows a revocable transfer on death (TOD) deed for real property. Under current law this part of the Probate Code is scheduled to be repealed on January 1, 2032.
Wills: Two witnesses. Holographic (handwritten) wills are allowed. No notary needed.
Probate: California has a small-estate affidavit after 40 days, with a dollar limit that is adjusted periodically (Prob. Code § 13100).
WillsState law
Wills- A typed will must be signed by the testator and by at least two witnesses present at the same time. Source: Cal. Prob. Code § 6110, checked Oct 29, 2026.
- Handwritten (holographic) wills are valid without witnesses if the signature and material provisions are in the testator’s handwriting. Source: Cal. Prob. Code § 6111, checked Oct 29, 2026.
Financial power of attorneyState law
Financial power of attorney- California provides a Uniform Statutory Form Power of Attorney (the full form text is published in Stats. 2011, ch. 113). Source: Cal. Prob. Code § 4401, checked Oct 29, 2026.
- A power of attorney is durable only if it says so, for example “This power of attorney shall not be affected by subsequent incapacity of the principal.” Source: Cal. Prob. Code § 4124, checked Oct 29, 2026.
- A power of attorney must be either notarized or signed by two qualified witnesses. Source: Cal. Prob. Code § 4121, checked Oct 29, 2026.
Medical power of attorney & advance directiveState law
Medical power of attorney & advance directiveOfficial form/source: Cal. Prob. Code § 4701 statutory Advance Health Care Directive form (California Legislature).
- California’s statutory Advance Health Care Directive form is set out in the Probate Code. Source: Cal. Prob. Code § 4701, checked Oct 29, 2026.
- The directive must be dated and either acknowledged before a notary or signed by two qualified witnesses; electronic directives require a notary. Source: Cal. Prob. Code § 4673, checked Oct 29, 2026.
- Witnesses cannot be the agent or the patient’s health care provider, and at least one must be unrelated and not an heir. Source: Cal. Prob. Code § 4674, checked Oct 29, 2026.
Transfer on death deeds: YesState law
Transfer on death deeds: YesCalifornia allows a revocable transfer on death (TOD) deed for real property. Under current law this part of the Probate Code is scheduled to be repealed on January 1, 2032.
- A revocable TOD deed makes a transfer of real property to a named beneficiary that operates at death and stays revocable until death (repealed as of January 1, 2032 under § 5600). Source: Cal. Prob. Code § 5614, checked Oct 29, 2026.
Do you need probate?State law
Do you need probate?Do you need probate?
Assets that usually skip probate:
- Jointly owned property with right of survivorship
- Payable-on-death (POD) and transfer-on-death (TOD) bank and brokerage accounts
- Life insurance and retirement accounts with a living named beneficiary
- Property titled in a living trust
- Real estate with a transfer on death deed, where the state allows one
What usually requires probate:
- Assets in the person’s sole name with no beneficiary or co-owner
- Real estate in the person’s sole name with no TOD deed or trust
- An estate above the state’s small-estate limit, or one that doesn’t qualify for the shortcut
- Debts or disputes that need a court-appointed representative
California shortcut: California has a small-estate affidavit after 40 days, with a dollar limit that is adjusted periodically (Prob. Code § 13100).
Quick decision guide
- Did the person own anything in their sole name with no beneficiary, co-owner or trust? No → probate is usually not needed (but check the will-filing rule below). Yes → go to 2.
- Is that property under the state’s small-estate limit or eligible for its simplified procedure? Yes → use the shortcut. No → a probate case is usually needed.
What you may still have to do with no probate
Yes, the original must be delivered to the court. Unless a probate petition is filed first, whoever has the will must, within 30 days after learning of the death, deliver it personally or by registered or certified mail to the clerk of the superior court in the county where the estate may be administered, and send a copy to the named executor (or a beneficiary). A custodian who fails to do this can be liable for damages. The delivery fee is set by Gov. Code § 70626.
- Custodian must deliver the will to the superior court clerk within 30 days of learning of the death and send a copy to the executor. Source: Cal. Prob. Code § 8200, checked Oct 29, 2026.
When do you need probate? · How to file a will after someone dies
Filing a will: do you need to, and howState law
Yes, the original must be delivered to the court. Unless a probate petition is filed first, whoever has the will must, within 30 days after learning of the death, deliver it personally or by registered or certified mail to the clerk of the superior court in the county where the estate may be administered, and send a copy to the named executor (or a beneficiary). A custodian who fails to do this can be liable for damages. The delivery fee is set by Gov. Code § 70626.
Where: Superior Court (probate clerk) for the county. Find yours: California probate courts by county. File the original signed will; courts generally will not accept a copy as the original.
- Custodian must deliver the will to the superior court clerk within 30 days of learning of the death and send a copy to the executor. Source: Cal. Prob. Code § 8200, checked Oct 29, 2026.
Getting death certificates for estate mattersState law
Getting death certificates for estate mattersWhere to order: The county recorder or the California Department of Public Health vital records office (official site). The funeral home usually orders the first certified copies for the family.
Eligibility rules and fees for this state are not yet verified on this site; check the official vital records office.
Probate & small estatesState law
- Heirs may collect personal property by affidavit, without probate, if the gross value of the decedent’s California property (excluding certain assets) does not exceed the statutory limit and 40 days have passed since death. The statute states $166,250 “as adjusted periodically” under § 890; check the current adjusted figure with the California courts before relying on it. Source: Cal. Prob. Code § 13100, checked Oct 29, 2026.
Probate costsState law
- Statutory attorney fee for ordinary services: 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9 million, 0.5% of the next $15 million; above $25 million, a reasonable amount set by the court. Source: Cal. Prob. Code § 10810, checked Oct 29, 2026.
- The personal representative’s (executor’s) statutory commission uses the same percentage schedule. Source: Cal. Prob. Code § 10800, checked Oct 29, 2026.
State estate & inheritance taxState law
State estate & inheritance tax- California has no state estate tax or inheritance tax. Source: California State Controller’s Office – Estate Tax, checked Oct 29, 2026.
Federal estate & gift taxFederal law
- The 2026 federal basic exclusion amount is $15,000,000 per person, shared by estate and gift tax. Source: IRS – What’s new, Estate and gift tax, checked Oct 29, 2026.
- Above the exclusion, the top federal estate tax rate is 40%. Source: 26 U.S.C. § 2001(c), checked Oct 29, 2026.
Medicaid look-back & nursing home careFederal + state
Medicaid look-back & nursing home careFederal law sets a 60-month look-back on gifts and other transfers for less than fair market value when someone applies for Medicaid nursing home care; each state’s Medicaid agency applies it, including the penalty divisor. California-specific figures are not yet verified on this site.
- Look-back period of 60 months for transfers on or after February 8, 2006. Source: 42 U.S.C. § 1396p(c)(1)(B), checked Oct 29, 2026.
Finding assetsFederal + state
Finding assetsFederal: as executor or administrator you can ask the IRS for the deceased person’s tax transcripts (Form 4506-T), sending a death certificate and your court letters or Form 56. Interest, dividend and retirement income on the transcripts points to accounts. California: search the state’s official unclaimed property list: California State Controller’s Office. Real estate: check the registry of deeds or recorder for the county (California county pages).
- An executor can request the deceased person’s tax transcript with a death certificate and Letters Testamentary or Form 56. Source: IRS – Request deceased person’s information, checked Oct 29, 2026.
- Official unclaimed property search for California. Source: California State Controller’s Office, checked Oct 29, 2026.
Finding debts & creditor deadlinesFederal + state
Finding debts & creditor deadlinesFederal: family members generally aren’t personally liable for a deceased person’s debts unless they co-signed, held a joint account, or state law makes them liable; debts are paid from the estate. California creditor deadline: Creditors must file a claim by the later of 4 months after letters are first issued to a general personal representative, or 60 days after notice of administration is mailed or delivered to that creditor.
- Survivors generally aren’t responsible unless an exception applies (co-signer, joint account holder, certain spouse or community property rules). Source: CFPB – Does a person’s debt go away when they die?, checked Oct 29, 2026.
- Deadline: later of four months after letters first issued or 60 days after notice of administration is mailed or delivered to the creditor. Source: Cal. Prob. Code § 9100, checked Oct 29, 2026.
Getting medical recordsFederal + state
Federal (HIPAA): the deceased person’s personal representative, meaning the executor, administrator or other person with authority under state law, can get their medical records for 50 years after death. Providers must respond within 30 days (one 30-day extension allowed) and may charge only a limited cost-based fee. Who counts as the representative when no one has been appointed is set by California law; we haven’t yet verified a California-specific statute, so ask the provider’s records office what proof it accepts.
- Personal representative of a decedent = executor, administrator or other person with authority under applicable law; protection lasts 50 years after death. Source: HHS – Health Information of Deceased Individuals, checked Oct 29, 2026.