Probate is the court-supervised process that validates a will, appoints someone to administer an estate, pays its debts, and transfers what remains to its heirs, required whenever a deceased person’s assets are titled in their own name rather than in a trust or a beneficiary designation.
In plain terms
Anything you own alone, in your own name, has to pass through a court before it can legally become someone else’s — that court process is probate. Anything titled in a trust, held jointly with survivorship rights, or paid out by contract (a 401(k), an IRA, a life insurance policy) skips it entirely. The wealth-planning industry exists largely to move assets into that second category before death, because the first one is public, slow, and — in some states — expensive on purpose.
How it works
An executor named in the will (or an administrator appointed by the court if there is none) files a petition, the court validates the will, creditors get a window to file claims, an inventory and appraisal of the estate is filed, and only after debts, taxes, and court-approved fees are paid does the court authorize distribution to heirs. The process is public record — the size of the estate and, often, its assets and who receives them, become discoverable by anyone.
Several states, led by California, do not let the personal representative and their attorney negotiate a fee. California Probate Code § 10810 fixes the fee for both the executor and the attorney on a sliding scale of the estate’s gross value — before subtracting any mortgage or other debt — and an agreement to pay the attorney more than the statutory schedule is void by law.
The numbers
- California statutory fee schedule: 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 — charged separately to the executor and to the attorney.
- On a $1,000,000 estate: roughly $23,000 to the attorney and $23,000 to the executor under the statutory schedule, before court costs or extraordinary fees.
- Gross, not net: the fee is calculated on the appraised value of the assets, so a $1,000,000 house with a $700,000 mortgage is still counted at $1,000,000.
- California small estate threshold (2026): $208,850 — personal property below this value can transfer by affidavit without opening a probate case at all.
- Typical total probate cost nationally: commonly cited at 3%–7% of the gross estate once court fees, appraisals, and bond premiums are added to attorney and executor compensation.
What people get wrong
That the fee is charged on what the heirs actually inherit. It isn’t — California’s statutory schedule runs on the gross appraised value of estate assets, with debt ignored, so a heavily mortgaged estate can generate a probate bill wildly out of proportion to the equity anyone will ever receive. The other common mistake is assuming a will avoids probate. A will only tells the probate court what to do; it does nothing to keep the estate out of court in the first place. Only retitling assets into a trust, joint ownership, or a beneficiary designation accomplishes that.
Related
Read more: Inheritance: The Transfer of Wealth Between Generations · Legacy: Inheritance, Heirs, and Family Continuity
See also: Irrevocable trust · Dynasty trust · Step-up in basis · Spendthrift clause