California Petition for Probate

Introduction

Key Things to Know

1. 1

   Court and form: file a petition for probate (the statute calls it a petition for administration of the estate) in the Superior Court of California in the county where the decedent lived, on Judicial Council form DE-111, a mandatory form; the court's form controls.

2. 2

   No one has authority over estate assets until the court appoints a personal representative and letters issue. Being named executor in a will does not by itself give authority, and the court holds a hearing before it appoints anyone.

3. 3

   There is no outer deadline to open probate (Cal. Prob. Code §8000(a)). But a named executor who does not petition within 30 days after knowing of the death and the nomination can be held to have waived the right to appointment unless good cause for delay is shown (Cal. Prob. Code §8001).

4. 4

   The custodian of a will must, within 30 days after learning of the death, deliver the original to the superior court clerk and a copy to the named executor, unless a probate petition is filed first. A custodian who fails is liable for resulting damages (Cal. Prob. Code §8200).

5. 5

   Who may serve: the executor named in the will comes first; otherwise priority runs from the surviving spouse or domestic partner, then children, grandchildren and other relatives (Cal. Prob. Code §8461). A nonresident of California may serve, but the court may require a bond despite any waiver (§8571), and a person who is not a resident of the United States is not competent to serve unless named executor in the will (§8402).

6. 6

   Notice and creditors: at least 15 days before the hearing the petitioner must deliver notice (form DE-121) to each known or reasonably ascertainable heir and to each devisee and named executor, and the notice is published three times in a newspaper (Cal. Prob. Code §§8110, 8121). After appointment, creditors have the later of four months after letters first issue or 60 days after notice of administration is mailed or personally delivered to them (Cal. Prob. Code §9100(a)). Bond is required unless the will waives it or, where the will does not require a bond, all beneficiaries waive it, and the court can still require one for good cause (§§8480, 8481).

7. 7

   Not every estate needs probate. Assets that pass by beneficiary designation, joint ownership with survivorship or a trust usually pass outside probate, and small estates may use a small-estate affidavit instead (see DocDraft's small-estate-affidavit page). Independent Administration of Estates Act authority is a level of power within a probate case, not a way to avoid probate.

California Requirements for Petition for Probate

• Mandatory Form DE-111

  The petition for probate is filed in the Superior Court on Judicial Council form DE-111, a mandatory form; the court's form controls.

• One Petition for Will and Appointment

  A single petition may ask for probate of the will and for appointment of a personal representative, and may also request Independent Administration of Estates Act authority (Cal. Prob. Code §§8000(a), 10450).

• Will Custodian Delivers Within 30 Days

  Unless a probate petition is filed first, the will's custodian must within 30 days after learning of the death deliver the original will to the superior court clerk and a copy to the named executor, and is liable for resulting damages if not (Cal. Prob. Code §8200).

• Named Executor 30-Day Waiver Risk

  A named executor who does not petition within 30 days after knowing of the death and the nomination may be held to have waived the right to appointment, unless good cause for delay is shown (Cal. Prob. Code §8001).

• Priority and Nonresident Rules

  The named executor has first priority, then the order in Cal. Prob. Code §8461. A nonresident may serve but the court may require a bond despite a waiver (§8571), and a person not a resident of the United States is not competent unless named executor in the will (§8402).

• 15-Day Hearing Notice and Publication

  At least 15 days before the hearing, notice on form DE-121 goes to each known or reasonably ascertainable heir and to each devisee, executor and alternate executor, and the notice is published three times in a newspaper (Cal. Prob. Code §§8110, 8121).

• Creditor Claims Period

  Creditors have the later of four months after letters are first issued to a general personal representative or 60 days after notice of administration is mailed or personally delivered to the creditor (Cal. Prob. Code §9100(a)).

• Bond Required Unless Waived

  A court-approved bond is required before letters issue unless the will waives it or, where the will does not require a bond, all beneficiaries waive it in writing with the waivers attached to the petition; the court may still require a bond for good cause (Cal. Prob. Code §§8480, 8481).

• Petition Contents

  The petition asks the court to determine the date and place of death (Cal. Prob. Code §8000(a)). It lists the heirs and devisees with name, age, address and relationship and the character and estimated value of the property, and attaches a copy of the will, with a typed copy if it is holographic (Cal. Prob. Code §8002).