San Jose Probate Attorney
Probate Can Keep Your Family in
Court for Many Months.
Looking for a probate lawyer in San Jose? When there is no trust, California often requires probate, which is slow, public, and costly. We handle the filings and the court work in Santa Clara County so your family can focus on what comes next.
Does This Sound Familiar?
If any of these keep you up at night, you’re not alone, and every one has a clear solution.
Months in court
California probate can take many months, depending on the estate, the creditor period, the court calendar and any disputes, and it is public record.
Costly fees
Statutory court and attorney fees can consume a meaningful share of the estate.
Overwhelming paperwork
Petitions, notices, and deadlines pile up while you’re still grieving.
How We Handle Probate
- Probate petitions & executor/administrator guidance
- Creditor notices & claims
- All court filings & hearings
- A clear plan for each step of settling the estate
What Probate Costs and How Long It Takes
Probate is the court-supervised process California uses to transfer a person’s assets after death when those assets were not held in a trust and do not pass by beneficiary designation. For this area it is handled by the probate division of the Santa Clara County Superior Court.
Two questions decide almost every probate conversation: what it costs, and how long it takes. Both have statutory answers, and the cost answer surprises most San Jose homeowners.
Swipe for more
The California Probate Code sets the maximum statutory fees
Probate Code section 10810 fixes compensation for ordinary services: four percent on the first $100,000, three percent on the next $100,000, two percent on the next $800,000, one percent on the next $9,000,000, and one-half of one percent on the next $15,000,000. Above $25,000,000 the court sets a reasonable amount.
The fee is computed on gross value, not on your equity
This is the part that catches Bay Area families. The statutory percentage applies to the value of the estate accounted for, and it is not reduced by the mortgage. A $1,200,000 San Jose home with $900,000 still owing is a $1,200,000 asset for this calculation, not a $300,000 one.
A worked example, so the number is not a mystery
Take a $1,200,000 home plus $300,000 in other assets, so $1,500,000 gross. Applying section 10810: $4,000 on the first $100,000, $3,000 on the next $100,000, $16,000 on the next $800,000, and $5,000 on the remaining $500,000. That is $28,000 for the attorney. Under section 10800 the personal representative is entitled to statutory compensation on the same schedule, so the two together come to roughly $56,000 before court costs, appraisal, publication, or any extraordinary services.
How long it takes
Probate Code section 12200 expects the personal representative to petition for final distribution, or file a status report, within one year of letters being issued. That extends to eighteen months where a federal estate tax return is required. The clock starts at letters, not at the date of death, and estates involving real property or a dispute commonly run past the expectation.
What the personal representative actually does
Petition the court and obtain letters, give notice to heirs and creditors, inventory and appraise the assets, manage them during administration, deal with valid creditor claims and final taxes, then account to the court and petition to distribute. Each step has its own notice requirements.
When there is no will
The estate is distributed under California’s intestacy rules. Probate Code section 6401 gives the surviving spouse the decedent’s one-half of the community property, and divides separate property: one-half to the spouse where there is one child, one-third where there is more than one. It is rarely what families assume.
When full probate can be avoided
Assets held in a funded living trust pass outside probate entirely. Accounts with a valid beneficiary designation pass under section 5000 regardless of the will. Probate Code section 13100 also provides a small-estate affidavit procedure, with a dollar limit that is adjusted periodically under section 890, so the current figure should be confirmed rather than assumed.
Official Resources
These official government and court sources explain the rules discussed on this page. They are provided for general information, not legal advice, and laws and court procedures can change.
- Superior Court of Santa Clara County: Probate Division: the court that hears probate and trust matters for San Jose residents
- Santa Clara County Probate Court location: where probate hearings are held in San Jose
- Santa Clara County Probate FAQs: the court’s own answers to common probate questions
- Santa Clara County Local Rules of Court: local court rules, including the probate rules
- California Courts: Guide to property after someone dies: official self-help guide from the Judicial Branch of California
- California Courts: When formal probate may not be needed: official overview of transfers that may not require a full probate case
- California Probate Code section 10800: statutory compensation of the personal representative
- California Probate Code section 10810: statutory compensation of the estate’s attorney
- IRS Publication 559: tax guide for survivors, executors and administrators
Frequently Asked Questions
General information about California law, not legal advice for your situation.
When do you need a probate attorney in San Jose?
You may need a probate attorney when someone dies owning California assets outside a trust worth more than $208,850, or real property that cannot use a simplified procedure. Probate for a San Jose resident is filed in the Santa Clara County Superior Court, and the personal representative must handle notices, inventory, creditor claims, and final distribution.
What is the $750,000 primary residence petition in California?
For deaths on or after April 1, 2025, Probate Code section 13151 lets heirs ask the court to transfer the decedent’s primary residence, valued up to $750,000, without a full probate. Heirs who receive the home can be personally liable for the decedent’s unsecured debts up to the value of their share.
How much does probate cost in California?
The California Probate Code sets the maximum statutory fees for attorney and personal representative compensation for ordinary services. Probate Code section 10810 sets four percent on the first $100,000, three percent on the next $100,000, two percent on the next $800,000, and one percent on the next $9,000,000. Court costs, appraisal fees, publication, and any extraordinary services are additional.
Is the probate fee based on my equity or the full value?
The full value. The statutory percentage is computed on the value of the estate accounted for and is not reduced by the mortgage. For a San Jose homeowner with substantial debt against the property, this single point is usually the difference between the fee they expected and the fee they get.
How long does probate take in Santa Clara County?
Probate Code section 12200 expects final distribution, or a status report, within one year of letters being issued, and eighteen months if a federal estate tax return is required. Estates with real property, a business, or a dispute frequently run longer. The clock starts when letters issue, not at death.
Where is probate filed in San Jose?
In the probate division of the Santa Clara County Superior Court, which handles decedents’ estates, conservatorships, guardianships, and trust matters for the county.
What happens if there is no will in California?
The estate passes under the intestacy rules. Probate Code section 6401 gives the surviving spouse the decedent’s half of the community property, then splits separate property: half to the spouse with one child, a third with more than one. A court, not the family, applies the formula.
Can probate be avoided?
Often, with planning done beforehand. Assets held in a funded living trust pass outside probate. Accounts with a valid beneficiary designation pass under Probate Code section 5000 whatever the will says. Section 13100 also provides a small-estate procedure, subject to a dollar limit adjusted periodically under section 890.
Do I need a probate attorney?
California does not require one, and a simple estate is sometimes handled without. What the attorney is doing is the notices, the inventory and appraisal, the creditor claims, and the accounting, each on the court’s schedule. A filing error is usually paid for in months rather than in dollars.
What does the executor have to do first?
Locate the will, obtain certified death certificates, secure the property, and petition the court for letters. Nobody has authority to sell, transfer, or close anything until the court issues those letters.
Do You Need Probate Help?
Answer 3 quick questions. No email required to see your result.
1. Did a loved one pass without a living trust?
2. Is there real estate or significant property to transfer?
3. Are you the named executor, or closest next of kin?
You Likely Need Probate Help
With no trust in place, California probate is probably required. We’ll manage the petition, notices, and court process so the estate settles with less stress.
Trusted by San Jose Families
“He got my trust and will done. He was very patient in explaining, very knowledgeable. I highly recommend him.”
“Fantastic, knowledgeable and very professional in establishing our trust. They explained everything thoroughly.”
“They spent the time explaining every component and answering our questions, giving us peace of mind for the future care of our child.”
“Clients for over 30 years. As always, every service was performed professionally and accurately.”
Client testimonials describe individual experiences. Every matter is different, and these statements are not a guarantee, warranty, or prediction of the outcome of your case.
Why Bay Area Families Choose Us
Specialist-Led
H. Rey Gervacio, S.J.D., is a Certified Specialist in Estate Planning, Trust & Probate Law, The State Bar of California Board of Legal Specialization.
Clear Next Steps
We explain your options and what to expect for your situation before any work begins.
San Jose Roots
Serving San Jose, Santa Clara County & the greater Bay Area with personal service.
Let’s Talk Before It Becomes Harder to Fix.
Start with a conversation. We’ll listen, explain your options in plain English, and map the right path forward.
Trust Law Legacy Group, APC · 100 Century Center Ct., Ste. 620, San Jose, CA 95112 · (408) 945-3950. Attorney advertising. This page is general information only, is not legal advice, and does not create an attorney-client relationship. Every situation is unique. Please consult an attorney about your specific circumstances.
Related probate and estate services
Probate questions often connect with California probate administration, trustee guidance, and estate real estate issues. For next steps, request a design meeting.
If there is no will, see who inherits without a will in California.
Areas we serve: San Jose · Palo Alto · Santa Clara, and families throughout Santa Clara County and the greater Bay Area.
What this looks like in a real file
One of our de-identified case studies follows a probate all the way to the final report: which creditor claims were paid, why the Probate Code § 9202 notices matter, and the personal-liability mistake administrators make most often with sale proceeds.
What the statutory fee would come to
Before anything else, it helps to see the number. The California probate fee calculator works out the statutory attorney and executor fees for a San Jose estate, including the mortgage rule that surprises most families.
Contact Us Today To Get The Help You Need!
Further reading on probate in San Jose
If a family member has just died, the legal next steps after a death covers the first few weeks. Beyond that, the two questions everyone asks are how long probate takes and whether it could have been avoided.
You can also read what families we have guided through probate have said about the process.
When an estate turns into a family fight, the Jimmy Buffett trust dispute shows how quickly it can escalate.