Congratulations! You have officially filed for probate, your documents have been accepted, and your hearing has been scheduled.
Many are nervous about what to expect next, and they worry that the judge might grill them on all aspects of probate law — but don’t worry, we’ll make sure you are prepared well ahead of time.
We will explain what the California probate court hearing is all about and what you need to know to be prepared.
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Before your hearing
Before we start, here is an important reminder: there are two things due 15 days prior to the court hearing. If either of these are missed, your hearing will be postponed.
Affidavit of Public Notice: This is the sworn statement the newspaper provides proving you have placed a public notice (newspaper as required).
Proof of Service: This is the sworn statement (page 2 of CA Probate Form DE-120, Notice of Hearing) that those required to be notified have been sent the notice of probate.
What is the purpose of the probate court hearing?
The main purpose of having a probate hearing is to allow the public (those that could be entitled to the estate) a chance to challenge your petition, or to challenge the validity of a Will if one exists.
The court doesn’t actually check to see if your petition is factual, rather it simply allows the petition to be challenged. If this sounds stressful, don’t worry! Most estates go unchallenged. As long as your petition is truthful, you should not have any issues.
What are the possible challenges to a petition for probate?
The first challenge would be any of the statements of facts in the petition. The who, what, when, where, what. Sometimes these statements are actually correct, but the deceased could have lived a double life and had an alias, or an unknown child/spouse presents themselves.
You can also challenge who has priority to be the person in charge of the estate. California has a set priority in who can be in charge:
When there is a Will, the person nominated in the Will is in charge. This person is called the executor. If there is no one nominated or available and willing to act (death or renouncement), then the next of kin can petition to be in charge.
When there is no Will (called Intestate) the next of kin has priority. Typically, priority goes first to a surviving spouse, then children, then parents, then siblings.
If a Will is being presented, you can challenge the Will. A Will is valid if it is signed by the testator (person making the Will) and is witnessed by two persons. Possible Challenges to a Will are:
There is a more recent valid Will (the recent Will supersedes any prior Wills). Codicils are changes to a Will that does not revoke the entire Will. If a codicil is found it can be admitted and included as part of the Will.
The testator was not in their full mental capacity, or was otherwise coerced to sign the Will.
The Will was forged.
If there are no challenges to your petition, the hearing Will just be a formality. The judge will simply admit the petition and Will (if there is one), then grant the nominated person the power to administer the estate. We hope this guide was helpful, and we wish you all the best in your probate hearing.
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