• Probate Process in California

The Probate Process in California

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 more substantial estates, however, the probate procedure may be lengthy and more complicated. Depending on the type of process, probate involves:

  • Proving in court that a deceased person’s will is valid.
  • Identifying and inventory the deceased person’s property.
  • Having the estate assets valued.
  • 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 to complete to begin the probate process in California. Below is a general overview of the forms you must fileand the legal requirements that must be met to begin 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:

  1. Surviving spouse
  2. Children
  3. Grandchildren
  4. Parents
  5. Brothers and sisters
  6. Grandparents
  7. 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 submit the following forms:

1.  Petition for Probate (Form DE-111) – This form 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 nonexistence) of a will
  • The existence (or nonexistence) of a testamentary executor
  • Estimated value of the property of the estate

2.  Original Will –  A Will is a legal document executed by a person prior to death. A will identifies those people that are to receive his or her property and possessions after death. These people are commonly referred to as the beneficiaries. It is not necessary, however, for a decedent to have a Will 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 other forms:

  1. Proof of Holographic Instrument (Form DE-135)
  2. Proof of Subscribing Witness (Form DE-131)

3.  Notice of Petition to Administer the Estate (Form DE-121) – This form has 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 a person appointed by the court who handles the probate. The Personal Representative is responsible for all 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 Judge grants the Order for Probate. This starts the probate case timeline.

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 granted to the personal representative. A Certified copy of Letters is typically presented to a bank or other agency to prove and verify the administrator’s authority.

A People’s Choice can help you in preparing the required forms to file a Petition for Probate. Before filing the Petition, it is important to verify that all questions on the documents 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 requires completion is the Notice of Petition to Administer the Estate. This notice provides all interested parties statutory notice of the probate hearing date. The probate process in California requires publication in a legal newspaper. This newspaper must be one of general circulation in the city, county, or city or county where the decedent resided at the time of death or where the property is located. You may want to reference 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 of general circulation throughout a designated area. If publication is defective, the personal representative will have to repeat the publication process all over and possibly continue the hearing date.

Notice on a person or entity is given by sending a copy of the petition via first class mail to his/her address. Notice must be provided at least 15 days before the hearing, unless otherwise specified by local court rules. Individuals requiring notice will vary on a case by case basis, but at a minimum, will always include all persons or entities named in the will.  Upon the successful completion of the publication and service upon a person, Proof of Publication and Proof of Service just 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 estimated value of the decedent’s personal and real property. A will may waive the bond requirement, or the heirs and devisees named in the will can agree to waive this bond requirement.

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 ready for the hearing by preparing all 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 first 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 first probate hearing, unfortunately there are many more 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.

Get help with your California legal documents today!

A People’s Choice can save you hundreds of dollars by preparing your legal documents instead of an expensive attorney!

GET STARTED!

We would love to know your thoughts on this article. Connect with us over on Google+ or Twitter

By |2018-04-20T00:20:50+00:00April 19th, 2018|Probate|2 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.

2 Comments

  1. EDDIE LANSANG January 14, 2019 at 11:52 am - Reply

    My dad was 87 years old when he died last November 28th, 2018.
    He was married but legally separated to my mom who is still alive at 85 years of age.
    They had become estranged years before his death.
    They had 7 offsprings (4 sons/3daughters)
    with the oldest daughter passing away last May of 2018 and survived by her lone daughter).
    I am one of the sons; another son was deported to the Phillipines.

    Sometime in October last year, unbeknownst to the rest of the family, one of my sisters, called
    the police to force my ailing father to be taken to the hospital against his will.
    HE DID NOT WANT TO GO TO THE HOSPITAL
    and as he suspected NEVER MADE IT BACK HOME TO HIS HOUSE.

    On October 31, 2018, my sister underhandedly got his house for $8,000 and it was recorded on November 5, 2018;
    This was done while he was dying! 🙁 The deed shows ONLY my sister now as the sole owner.

    His house is a fixer-upper and the RealAVM as of 01/03/2019 was $393,602; and
    Zillow’s Zestimate is at $447,140. There is a reverse mortgage on the property with a balance of $80,000.
    The property is not in foreclosure, but I believe that the loan servicer has already issued a 30-day notice
    to collect, not sure when.

    There is no will or living trust as far as I know.

    [1]
    Was that transfer from my dad to solely my sister legal in California without a will as he was dying without any knowledge from our mom and the rest of us offsprings?

    [2]
    What can the rest of the family(my mom and five other offsprings) be able to file/do legally now?

    [3]
    Should we file to start probate, BUT the house will not be part of my dad’s estate now as it belongs
    to my sister solely?

    [4]
    My mom being still married but legally separated and filed a quit-claim on the house in question, leave
    her no “say so?” She is living in a senior housing; had already started to receive my dad’s social security benefits which reduced her SSI accordingly; so she is concerned about getting involved and lose her current benefits.

    I read that since they were still married and her name not on the deed, that the house under California Law
    was considered “separate property” and once sold, she is entitled to 50% while the other goes equally to the
    children with my deceased sister’s 100% getting cut into 50% which then goes to her lone daughter.

    • Sandy McCarthy January 17, 2019 at 9:11 am - Reply

      We cannot give you legal advice regarding this matter but if you do need tto file probate, we can help you with the paperwork. Let us know. If you need legal advice, I would strongly recommend you talk to an attorney as soon as possible.

Leave A Comment

error: Alert: Content is protected !!