How to file a petition for probate in California

On average, Americans will spend a collective $2 billion each year on probate.

In a nutshell, the probate process is a court supervised proceeding wherein the court validates the will of the deceased or appoints a personal representative so that the estate will be administered equitably and fairly to the deceased’s heirs.

If you’re a personal representative of an estate in California, then you’ll need to learn how to file a petition for probate with your local court to get the whole process started. Learn how to go about the process below.

There are a few conditions that must be met before filing a petition for probate in California. For one, someone must have passed away. For another, the person attempting to file the petition must meet the following requirements:

• The filing party must be at least 18 years old

• The filing party must be a resident of the U.S.

• If no will is present, then the filing party must have priority to be appointed as an administrator

• The filing party must be able to perform the duties of a personal representative

• The filing party cannot be subject to a conservatorship

These factors are crucial to establish because if one isn’t present, then it might not be best to file the petition for probate. Instead, another party may be better suited to start the process. If you don’t think you’d have the time to perform the duties of a personal representative, then it is possible to hire a professional executor who can help you handle the ins-and-outs, responsibilities, and duties required of an executor.

Who Can File?

Outlined in the will by the testator, the personal representative of the estate will file for probate.

However, if there is no will present - California's Probate Code § 8461 outlines the order of priority as to who can file for probate if the deceased passed away intestate.

Below is the order of priority as to who can file for probate if there is no will present:

1. Surviving spouse or registered domestic partner

2. Adult children

3. Grandchildren

4. Other surviving issue (great-grandchildren)

5. Parents

6. Siblings

7. Issue of siblings (nieces or nephews)

8. Grandparents

9. Issue of grandparents (aunts or uncles)

10. Adult children of a predeceased spouse or registered domestic partner

11. Other issue of a predeceased spouse or registered domestic partner

12. Other next of kin

13. Parents of a predeceased spouse or registered domestic partner

14. Issue of parents of a predeceased spouse or registered domestic partner

15. Conservator or guardian of the estate acting in that capacity at the time of death who has filed the first account and is not acting as a conservator or guardian for any other person

16. Public administrator

17. Creditors

18. Any other person

In general, probate should be filed as soon after the individual's death as is reasonably possible. There isn't a specific deadline in the California Probate Code, but there are some practical considerations:

• Many assets are frozen upon death until a personal representative (also known as an executor) is appointed by the court. Filing probate allows this appointment to take place and the assets to be managed.
• There may be time-sensitive matters to deal with, such as maintaining a business, managing real estate, or dealing with tax matters.
• Creditors have a limited time to make claims against the estate. In California, this period is typically 4 months from the date the personal representative is appointed by the court. Filing probate starts this timeline.
• Delays can cause discord among heirs or beneficiaries, especially if they are in need of their inheritance or if they believe the estate is not being properly managed.
• If probate is not opened and there are assets needing to be administered, interested parties (like creditors or heirs) could potentially open probate themselves.

Remember that not all estates need to go through probate in California. For example, estates that are small enough or estates where the decedent had a properly structured living trust may not need to go through the probate process.

It's simple: file petitions for probate in the county court where the deceased lived when they passed away. Search for the right county court by entering the ZIP code of the deceased’s final address. Certain jurisdictions like Los Angeles County allow you to e-file your probate petition, however others, like San Francisco County will require you to file the petition in person.

Finally, let's go over the step-by-step process of filing a petition for probate in California.

1. Obtain the Necessary Documents

First, you need to obtain Form DE-111. You can print off California courtroom’s official form, or you can obtain the official form from your local courthouse.

2. Fill Out Form DE-111

Next, you need to completely fill out the form. In the first box, you’ll list out your personal information since you’re the petitioner who is seeking out to become the appointed representative. In the “Attorney For” box, you can list “self-represented” if you don’t plan on hiring an attorney.

Next, list out the address of the superior court where you’ll take the form. This will be the courtroom that’s located in the same county the deceased personally resided in.

Next, you need to list out the deceased’s information and check off whether they had a will or no will.

Finally, you’ll need to answer a series of questions regarding the death publication, potential petitioners, surviving relatives, and more. Once complete, you’ll sign and date the form.

3. File Your Probate Petition and Lodge The Will With Your Local Court

After filling out the form, you need to bring it to the court where the deceased permanently resided prior to their passing. Officially file and lodge the original will along with form DE-111.

4. Notify the Relevant Parties With Form DE-121

Next, fill out Form DE-121. This form will help you officially provide notice to all interested parties so that they will be kept in the loop regarding the probation hearing. Notice must be given by providing an official copy of the notice to interested parties via first class mail or in-person at least 5 days prior to the hearing.

Do You Have More Probate Questions?

Once you’ve gone through these four steps, you will have officially petitioned the court to begin the probate process. You also will have officially notified all of the parties you need to.

From there, you can rest easy and wait for the court to notify you regarding what comes next. If you are the executor, then you’ll have more work to do once you’ve finished the petition.

You’ll want to start handling the bills and debts associated with the estate, filing a final income tax return for the deceased, and paying any outstanding taxes. Once these claims are handled, you’ll distribute the remaining assets and close the estate.

Of course, you don’t have to handle all these complicated tasks on your own. Here at ClearEstate, we can help with professional executor services or answer other questions about the probate process that you might have.

Book a free consultation with our team now to learn more about how we can help you through this trying time.