The probate process in California takes place after someone dies. Depending on the size of the estate, the process of probating an estate can be surprisingly quick and simple to complete. For larger estates, however, the probate procedure may be lengthy and more complex. Depending on the type of procedure, probate involves:
- Proving in court that a deceased person’s will is valid.
- Identifying and inventory the deceased person’s property.
- Having the property appraised.
- Paying debts and taxes.
- Distributing the remaining property as the will (or state law, if there’s no will) direct.
Starting the Probate Process in California
There are several forms and legal steps that must be completed in order to start the probate process in California. Below is a general overview of the forms that are filed and the legal requirements that must be met to start probate. After you read this article, we recommend you read a detailed article discussing How to Fill Out Petition to Probate in California.
Appointment of Personal Representative to Probate the Will
The probate process in California requires the appointment of an estate representative. The estate’s personal representative is a person or entity that is authorized to probate a will in California. The personal representative is usually the named executor of the will or administrator of the estate. If the decedent did not have a will, then certain persons related to the decedent are entitled to be appointed as a personal representative in the following order:
- Surviving spouse
- Brothers and sisters
- Issue of grandparents
How to File a Petition for Probate in California
In California, the probate process starts with filing a petition for probate. The personal representative must prepare and file the following forms:
1. Petition for Probate (Form DE-111) – This form basically defines the information that will be presented to the Court, such as:
- Name of the Petitioner
- Name of the decedent
- Date of decedent’s death
- The existence (or inexistence) of a will
- The existence (or inexistence) of a testamentary executor
- Estimated value of the property of the estate
2. Original Will – A Will is the legal document executed by the decedent prior to death. A will identifies those individuals that are to receive his or her property and possessions after death. These individuals are commonly referred to as the beneficiaries. It is not necessary, however, for a decedent to have a Will in order to have the estate assets distributed through a full probate proceeding.
If the decedent had a will but it does not comply with the provisions of California statutes, you need to “prove a will” and prepare and file the following additional forms:
- Proof of Holographic Instrument (Form DE-135)
- Proof of Subscribing Witness (Form DE-131)
3. Notice of Petition to Administer the Estate (Form DE-121) – This form is used for two main purposes:
- To notify the persons who are entitled to receive notice about the scheduled probate hearing.
- For newspaper publication
4. Duties and Liabilities for Personal Representative (Form DE-147) – A Personal Representative is the person appointed by the court who handles the probate. The Personal Representative is responsible for all of the following:
- Gathering property owned by the person who died.
- Notifying creditors and heirs or devisees.
- Handling debts and taxes.
- Wrapping up the final business affairs of the person who died.
- Transferring property owned by the person who died to the right persons.
- Filing any documents required by the state or federal government.
- Filing all documents required by the court.
- Closing the probate when everything is done.
5. Order to Probate (Form DE-140) – The Order for Probate is issued by the Court and confirms that court’s authority granted to the executor or administrator of the estate. In the probate process in California this document specifies the executor or administrator’s authority and powers granted to them by the court. These powers and authority are confirmed by the Court Clerk’s issuance of Letters of Testamentary.
6. Letters (DE-150) – The Letters (Letters of Testamentary) serve basically as a “driver’s license” for the administrator of the estate, and are a proof of the authority conferred by the Court for a specifically named individual or individuals to act on behalf of the decedent’s estate. A Certified copy of Letters are typically presented to a bank or other agency to prove and verify the administrator’s authority.
A People’s Choice can assist you in preparing the required forms to file a Petition for Probate. Prior to filing the Petition, it is important to verify that all questions on the form have been properly answered and all required attachments included. If a Petition contains incomplete information, the hearing date may be postponed, and the entire process may be subject to obstacles and unnecessary delays.
Notice to Administer the Estate
In addition to completing the Petition to Probate form mentioned above, one of the most important forms that needs to be completed is the Notice of Petition to Administer the Estate. This notice provides all interested parties statutory notice regarding the probate hearing date. The probate process in California requires notice be published in an adjudicated legal newspaper of general circulation in the city, county, or city or county where the deceased settlor resided at the time of death or where the property is located pursuant to the statutory requirements of California Probate Code Section 19040.
The newspaper publication must occur 3 times in the legal section of the newspaper. The newspaper must be one that is put in general circulation throughout a designated locale. If a defective publication is made, the personal representative will have to repeat the publication process all over and possibly continue the hearing date.
Notice on a person or entity can be provided by sending a copy of the petition via first class mail to his/her address. Notice must be provided at least 15 days prior to the hearing, unless otherwise specified by local court rules. Individuals requiring notice will vary on a case by case basis, but at minimum, will always include all persons or entities that are identified in the will. Upon the successful completion of the publication and service upon a person, Proof of Publication and Proof of Service will have to be filed with the local court.
File Your Bond
Most California probate courts require personal representatives to file a bond. The bond is used to protect interested persons such as beneficiaries and creditors in the event of any wrongdoing by the representative. The amount of the bond is fixed based on the estimate value of the decedent’s personal and real property. A will may waive the bond requirement, or the heirs and devisees that may be beneficiaries to the will can agree to exempt the personal representative of providing such guarantee.
Appear at Hearing on Petition to Probate
Once you have completed all necessary forms and filed with the court, including the proof of publication/service by mail, and filed a bond, if necessary, the probate hearing will take place. A People’s Choice can make sure you are fully prepared for the hearing by preparing all of the correct and complete documents. We also provide all clients with a detailed manual and self-help reference tool which reviews in detail what to expect during the probate process as well as detailed actions to take every step of the way.
California Probate Steps After Initial Probate Hearing
People are often under the misconception that after the initial hearing the probate process in California is almost complete. This is not the case. A typical California probate proceeding usually takes between 5 to 7 months to complete. After the initial probate hearing, unfortunately there are many additional steps required to manage the probate process to its final completion. A People’s Choice can save you thousands of dollars as compared to using an attorney. We will make sure your probate case proceeds effortlessly through these steps so that the estate can be quickly distributed at the conclusion of the case.