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Probate
Legal/Rights§ 01 — Definition
Probate is the court process that transfers a deceased person's assets to their heirs. It is slow and public: a typical California probate runs one to three years, and the file is a public record anyone can read. The cost is the part that surprises families. California sets attorney and executor compensation by statute (Probate Code sections 10800 and 10810) as a percentage of the GROSS value of the estate, not the equity: 4 percent of the first $100,000, 3 percent of the next $100,000, 2 percent of the next $800,000, then 1 percent. A home worth $800,000 with a $350,000 mortgage is charged on the full $800,000 — about $19,000 to the attorney and another $19,000 to the executor, roughly $38,000 before court filing fees, appraisal, and bond. As of 2026, California estates under $208,850 can use a small-estate affidavit instead; that figure is indexed and next adjusts in April 2028. Thresholds, fee schedules, and timelines vary substantially by state.
§ 02 — Why it matters for benefits
Probate money is money that never reaches your child. Worse, a probate court that finds a beneficiary with a disability will usually create a court-supervised first-party trust with a Medicaid payback attached, or open a conservatorship of the estate — outcomes a living trust set up in advance avoids entirely.
