When someone close to you passes away, there is the question of how their personal property and assets should be distributed. This is referred to as their estate, and each state has specific laws that dictate how this process should be handled. Although there are certain exceptions, in most cases it is required that the estate passed through a legal process of probate. If you don’t know anything about probate, getting thrust into this responsibility can feel overwhelming.
We at Trust & Will are here to help. We provide many resources that educate readers on how to navigate the probate process, and much more. Today’s guide specifically pertains to how to file a petition for probate in California. If your loved one resided in California, then most likely you will be filing a probate petition with the county courthouse. This is the important first action that allows the probate process to commence. Keep reading to understand how to file a California probate petition, step-by-step.
Who Can Petition for Probate in California?
It’s important to understand that not just anyone can file a petition for probate in California. Each state has specific laws that explain how the probate process works. California probate law generally allows three key types of actors to file the probate petition. The first, and most ideal actor, is the person who was named Executor in the deceased person’s Will. If both a Will and the named Executor are available, then this nominated individual will likely be appointed by the court to manage the probate process on behalf of the estate. Because of this, it makes the most sense for them to also file the petition for probate.
Alternatively, the Will and the probate petition can be filed by a relative or a valid beneficiary of the decedent. However, note that the petition should only be filed once. If the person filing the petition is not the Executor, then they should be sure to forward a copy of the Will to them such that they can fulfill their duties.
Our guide, Who Can File a Petition for Probate in California, explains this in further detail.
If you identify yourself as an individual who is eligible to petition for probate in California, you’ll want to know exactly what the process of filing the probate petition entails. Look no further — the next section provides a step-by-step overview.
How to File a Petition for Probate in California - A Step by Step Guide
If you are in possession of a deceased person’s Will, then the onus is on you to ensure that it gets properly filed for probate. In California, you are eligible to do the filing if you are either the Executor, a relative, or a beneficiary of the decedent. Only one person needs to file the Will and petition for probate.
If you are not the Executor and see that there is a named Executor in the Will, you can opt to forward the Will directly to them for filing. However, you can also choose to file the Will and petition for probate and forward the Will to the Executor as well.
Here is an overview of the steps on how to file a petition for probate in California:
Identify the appropriate county
Download the appropriate Petition for Probate form
Take the will and petition to the probate court clerk’s office
Send a copy of the Will to the Executor (if applicable)
1. Identify the appropriate county
Before you can file the petition for probate, you need to know where to file it. The petition should be filed at the Superior Court office located in the county in which the decedent resided.
We recommend conducting a web search to find county-specific filing information. For instance, try the search query, “Superior Court [Insert County Name] County.” You may even try to narrow your search with the search query “Superior Court [Insert County Name] County Probate.” Or more simply, “Probate Court [Insert County Name].”
It may take a few different search queries, but easily enough you should find the correct county government website that provides information regarding the probate court division. Here, they should provide the county probate clerk contact information, address, and hours of operation.
2. Download the appropriate Petition for Probate form
Once on your county probate clerk website, you will often find probate instructions, including a schedule of fees that will tell you how much the filing fee is, as well as a link to probate-related forms.
Look for DE-111, which is the California-specific petition for probate form. This form contains several different types of petitions, based on which option you choose. Examples include “Probate of Will and Letters of Testamentary” and “Letters of Administration.” Each of these options correlate with various scenarios, such as instances where a Will exists, a Will exists but doesn’t name an Executor, or there is no Will. If you’re not sure which option to select, visit our guide Types of Petitions Used to Begin Probate in California.
Complete the form, download it, and fill it out.
3. Take the will and petition to the probate court clerk’s office
Within 30 days of the decedent’s death, go to the county probate clerk’s office and file for probate. This is done by submitting the completed petition for probate form, the Will, and the decedent’s death certificate. You must also pay the filing fee, which is currently $435.00 in California.
4. Send a copy of the Will to the Executor (if Applicable)
Last but not least, the named Executor must have a copy of the Will. If you are not the Executor, be sure to mail a copy of the Will to them so that they are aware that the petition for probate has been filed and can proceed with fulfilling their duties.
How Long Do You Have to File Probate After Death in California?
In the case of a full probate process, the Will and petition for probate must be filed within 30 days of the decedent’s death. If the Will isn’t filed during this timeframe, then the Executor may have unintentionally waived their right to serve.
If the estate qualifies for the small estate affidavit in California, then the petition cannot be filed until 40 days after the decedent’s death. This is one of the few exceptions to probate and is available to California estates that are valued for less than the defined threshold. Find out more about whether the estate in question might qualify for the simplified version of probate here.
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 California Petition for Probate Process
When a loved one passes away, a personal representative must file the Will and the petition to open probate. In California, this must be done within 30 days of the decedent’s death. However, it can be confusing to identify who should do the filing, where, and how.
This guide went over how to file a petition for probate in California. In general, it falls on the named Executor to file the Will and the petition. However, there are cases in which this might be done by a family member or beneficiary of the decedent. Perhaps they are in possession of the Will and no Executor was named, or perhaps a Will could not be found. If a family member files the Will and the petition, but an Executor was named, then they should be sure to forward a copy of the Will to them so that they can fulfill their duties.
The matter of filing the petition for probate is relatively straightforward. In California, the standard form DE-111 can be downloaded and completed. Then, the representative can submit the form and the Will to the probate court located in the county in which the decedent resided. The probate clerk office’s location, contact information, and hours of operation can easily be found online. It’s a great idea to call in advance if you have any questions regarding the process and instructions on how to pay the filing fee.
The action step of filing the petition for probate is just the beginning. This is requesting the probate court to initiate probate proceedings for the decedent’s estate. The probate process can take several months or longer, in most cases a year. To find out how the probate process works, be sure to read our in-depth probate guide here.
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Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.
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