If a loved one recently passed away, then you or an alternative representative must promptly file a petition for probate. This is a legal action that must be completed in order to initiate the probate process, which is required for most estates save for some exceptions. Here, choosing the correct type of petition is important. The correct petition is based on state rules and the decedent’s unique circumstances. This guide explains the California petition for probate and the 4 different types that can be used.
4 Types of Petitions Used to Begin Probate in California
In the state of California, a Will must be filed within 30 days from the date of an individual’s passing. Along with the Will, the petition for probate must be filed in order to initiate the probate process.
In our guide, Who Can Petition for Probate in California, we discuss at length who is eligible to file this paperwork. It is typically either the individual who was named as Executor in the Will, but it can also be a close family member.
Here, this individual must decide which type of petition to use. In California, there is a single, standard form used to petition for probate: CA DE-111. On this form, you have the option to select one of several different types of petitions for probate.
Here are the 4 types of petitions used to begin probate in California:
Petition for Probate of Will and Letters Testamentary
Petition for Probate of Will and Letters of Administration with Will Annexed
Petition for Letters of Administration
Petition for Letters of Special Administration
1. Petition for Probate of Will and Letters Testamentary
The first and most common option is the Petition for Probate of Will and Letters Testamentary. This is used when the decedent left behind a Will, and in it, named an Executor. When this petition is used, it is typically the Executor themself who is filing the Will and the petition.
The court will then officially appoint this named person to the role so that they can move forward with the probate proceedings. However, there are exceptions, such as when the Executor decides to reject the position or has predeceased the decedent. If any of these situations apply, then you would instead use this next option.
2. Petition for Probate of Will and Letters of Administration with Will Annexed
The Petition for Probate of Will and Letters of Administration with Will Annexed is used when the decedent left behind a Will, but one of the special conditions apply:
An Executor was not named.
The named Executor is unwilling or unable to serve.
The named Executor is also deceased.
This petition is signaling to the court that a Will exists and must be validated. However, the Executor is unavailable and an alternate Executor or Administrator must be identified and appointed.
3. Petition for Letters of Administration
The next two options apply when the decedent died intestate, meaning they passed away without leaving a Will. In this case, the probate process will be conducted in a different manner. Assets and property will be distributed using next-of-kin laws, also known as intestate succession laws.
By filing a Petition for Letters of Administration, you are essentially asking the court to appoint an Administrator who is authorized to act as a personal representative of the estate. This is in place of an Executor who could have been named by the decedent had they executed a Will.
4. Petition for Letters of Special Administration
Last but not least is the Petition for Letters of Special Administration option. This petition requests the court to authorize certain limited acts on behalf of the estate until the permanent letters of administration are approved.
There may be certain circumstances in which you need to request an expedited appointment. For instance, perhaps there is a special reason that the assets of the estate need to be protected. You may also use this petition to authorize permanent powers when a Will is being contested.
Learn More About the Probate Process
The California petition for probate is a form that is submitted to the county probate court. By filing this petition, you are formally requesting to open probate for a deceased person’s estate. If the deceased individual left behind a Will, then the Will is also filed with the petition.
Although there is a single form used for this purpose in California, there are actually several different types of petitions housed within this form. This guide provided an overview of 4 of the most commonly-used options. It is up to the individual filing the form to select the correct option, which is typically informed by the availability of a Will and the availability of an Executor.
The probate process is anything but simple. To complicate matters, probate rules differ from state to state. However, navigating the probate process can feel more manageable if you come from an informed place. We at Trust & Will offer a free Learn Center that is filled with educational guides on probate, estate planning, and much more. To begin, we recommend beginning with our guide that explains the basics of Probate before delving deeper.
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