How to File a Petition for Probate in California

Updated on October 10, 2023

Filing for probate in California involves a series of steps that are both legal and administrative in nature. The process starts with determining if you qualify to be the personal representative. The qualifications generally include being over 18 years old and not being subject to a conservatorship. If you meet these criteria, you can proceed with filing a Petition for Probate. Here is a brief summary on how to file a probate petition in California:

• File a Probate Petition with the Court
• Determine if the Will is a Valid Instrument
• Marshal the Assets
• Complete an Inventory and Appraisal
• Petition the Court
  

Key Steps

1. Prepare Necessary Forms: The primary form is the Petition for Probate (Form DE-111), along with any attachments and the original will if one exists. Other forms like Notice of Petition to Administer Estate (Form DE-121) and Duties and Liabilities of Personal Representative (Form DE-147) are also required.
2. Notice Requirements: You must notify all interested parties, including those named in the will and those who would inherit by intestate succession. This notice should be sent at least 15 days before the hearing date.
3. Publication: Publish the Notice of Petition to Administer Estate in a local newspaper of general circulation, following specific time frames and guidelines.
4. Court Hearing: Appear in court on the scheduled hearing date. If approved, you’ll receive an Order for Probate and Letters, which give you the authority to act on behalf of the estate.
5. Special Circumstances: In emergency situations, you can file for Letters of Special Administration, which are temporary and can be approved on an ex-parte basis.
6. Additional Forms for Proving a Will: If the will is handwritten (holographic) or not self-proving, additional forms like Proof of Holographic Instrument (Form DE-135) or Proof of Subscribing Witness (Form DE-131) may be needed.
7. Fulfill Duties: Once appointed, you have various responsibilities, including managing assets, paying debts, and eventually distributing the estate to the beneficiaries.

The process can be complex and may require consultation with legal professionals to navigate the intricacies involved.

How to File a Petition for Probate in California

When a person who had a will dies or when a person dies intestate (i.e. without a will or living trust), the decedent’s assets are properly distributed through a process called probate.

This is essentially a court proceeding wherein the judge will determine who gets what and how much of the decedent’s estate.

The first step of the probate process is for any interested person to file a probate petition with the court for administration of the decedent’s estate.

In this petition, the court will determine the date and place of the decedent’s death and appoint a personal representative and/or probate the decedent’s will (if there is a will).

If There is a Will

If there is a will, the court must first determine whether the will is a valid instrument of the decedent. If the court determines that the will is valid, it will issue an order for probate and letters testamentary or of administration.

The letters formalize the personal representative’s appointment and authority to act on behalf of the estate.

For example, a bank requires these letters to release the decedent’s account information to the personal representative.

Marshaling the Assets

After the personal representative receives the letters, he must then “marshal the assets.” This means identifying, collecting, and valuing the assets of the decedent’s estate.

This will allow the personal representative to properly administer the estate, which basically consists of

(1) collecting, managing and preserving the decedent’s assets,

(2) paying the decedent’s debts, taxes, and expenses of administration, and

(3) distributing the remainder of the estate to the beneficiaries and/or heirs. After marshaling the assets, the personal representative must complete an inventory and appraisal of the assets in the decedent’s estates.

This generally requires a probate referee to value the non-monetary assets.

The personal representative will then petition the court for an order for a preliminary or final distribution of the decedent’s estates to the beneficiaries/heirs per the terms of the will.

Once the court issues a final order for preliminary or final distribution, the order binds and is conclusive as to the rights of all interested persons.

Steps After Filing a Probate Petition

Our experienced California real estate attorneys can help with the entire process of filing a petition for probate. Schedule a consultation today by giving us a call (310) 954-1877. You can also text (310) 706-2265, or send us a message here.