Probate or Trust Administration? How to Tell (California)

These are two different processes with different rules, different timelines, and very different costs, and people routinely start the wrong one. The question that sorts it is not what documents exist. It’s how each asset was titled on the date of death.

The sorting rule

Go asset by asset, not document by document. For each one, ask whose name was on it when the person died.

Titled in the name of the trust (“the Smith Family Trust dated 3/1/2015”) goes through trust administration. No court.
Has a valid beneficiary designation (retirement accounts, life insurance, payable-on-death and transfer-on-death accounts) passes to the named beneficiary directly. Neither process. Just a claim form and a death certificate.
Held in joint tenancy with right of survivorship passes to the survivor by operation of law. Neither process.
Titled in the decedent’s name alone, with no beneficiary is the probate pile.

A person can easily generate all four. A funded trust, a 401(k) with a named beneficiary, a joint checking account with a spouse, and one forgotten brokerage account in their own name. Three of those need nothing from a court. The fourth might need a full probate.

The most common surprise

Having a trust does not mean avoiding probate. A trust only controls what was actually transferred into it.

The classic failure is a couple who signs a trust in 2015, never records the deed moving the house into it, and dies twenty years later. The trust is valid. The house is not in it. The house goes to probate, and the trust governs almost nothing.

Before you conclude you’re in trust administration, pull the deed and read the vesting. If it says the decedent’s individual name rather than the trust, you have a problem, though not necessarily a probate. See below.

Our trust funding tracker is built for exactly this check, and the trust funding checklist walks through what should have been moved.

If it’s trust administration

No court, no filing fee, no public record. The successor trustee acts under the trust document and the Probate Code’s trustee provisions.

The clock that matters immediately is § 16061.7: the notification goes out within 60 days of death to every beneficiary and every heir of the deceased settlor, carrying the 120-day contest warning.

From there it’s gathering and valuing assets, dealing with the assessor on real property, paying debts and final taxes, accounting under § 16062, and distributing. A successor trustee’s first 90 days covers the sequence.

If it’s probate

Court supervision from start to finish, and the statutory fees under § 10800 and § 10810: 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, paid twice, once to the personal representative and once to the attorney, calculated on gross value without subtracting the mortgage. We work a full example in what probate costs on a $700,000 house.

Twelve to eighteen months is realistic. The four-month creditor window runs from issuance of letters.

The middle options people miss

Probate is not the only court route, and several procedures are far cheaper.

Small estate affidavit. Under § 13100, where the gross estate falls under the current adjusted limit of $208,850 and 40 days have passed, a successor can collect property by affidavit with no court at all. Details in the small estate affidavit guide.

Spousal property petition. Property passing to a surviving spouse can go through a simplified petition rather than full administration. See spousal property petitions.

Heggstad petition. This is the fix for the unfunded house. Where the settlor clearly intended property to be in the trust but title was never transferred, a petition under § 850 can confirm the trust owns it, avoiding a full probate. Our page on the Heggstad petition covers when it works.

The Heggstad route is the single most valuable thing to know here, because it converts what looks like a $34,000 probate into a much smaller petition. It depends on evidence of intent, a schedule of trust assets, a general assignment, or a signed but unrecorded deed.

Both at once is normal

Plenty of families run a trust administration and a small estate affidavit at the same time, or a trust administration plus a Heggstad petition for one property. That’s not a mistake. It reflects how the assets were titled.

Where to start

Make the asset list before doing anything else. Every account, every property, every policy, with the exact vesting on each. Pull the deed from the county recorder. Call each institution and ask what beneficiary is on file.

That list determines everything, and it’s the first thing any competent lawyer will ask for. Our probate screener will run the analysis with you.

Ridley Law handles both processes in Ventura, Santa Barbara, and Los Angeles counties, and the practice is fully remote. Call (805) 244-5291.

Probate or Trust Administration: Which One Are You Actually In?