When a loved one passes away, there is the important matter of moving their assets to their beneficiaries. However, there are serious legal and financial consequences if you do this “under the table.” Instead, you must file a petition for probate, which is a formal legal process that oversees the distribution of a deceased person’s estate. The rules surrounding probate are different from one state to the next. Learn how to petition for probate of Will in California in this guide.
Who Can Petition for Probate in California?
Probate is a legal court process that performs several important functions:
Determine the existence and validity of a Will
Appoint an Executor or Administrator of the estate
Oversees the notification of estate beneficiaries and creditors/lenders
Ensures debts and taxes of the estate are paid
Remaining estate assets and property are distributed to beneficiaries of the decedent
Appoint Guardians for minors and dependents
Appoint Conservators when applicable
Not all estates must go through probate. There are several exceptions to probate, such as when the decedent had transferred their property and assets to a Living Trust. In some states, including California, a simplified probate process is also available for small estates.
If these exceptions do not apply, then the estate must go through probate. However, the probate process does not commence automatically or on its own. Someone must request the Superior Court in their respective county to initiate the probate process, which is done by filing the petition for probate of Will.
Here, not just anyone can file the probate petition. If the decedent had executed a Last Will and Testament, this document is the first place to look. Most often, the Testator (the person who created the Will) would have named an Executor. This is the individual they chose to administer the estate and see to it that their final wishes are carried out. If a named Executor is available, then it often makes sense for them to file the petition for probate of Will as they will most likely be overseeing the probate process.
However, if an Executor is not named, they are predeceased, or do not wish to accept their role, then any relative or named beneficiary of the deceased is also eligible to file the petition for probate. In California, this is the form DE-111.
In review, here are the three types of individuals who are eligible to file the California Form DE-111 Petition for Probate:
Named Executor in a Last Will and Testament
Any relative of the deceased
Any named beneficiary
Types of Petitions Used to Begin Probate in California
Note that there are several different types of petitions used to begin the probate process in California. The type of petition used informs the probate court on how to proceed and what actions need to take place. For instance, one type is used when a Will is in place and an Executor has been named. Another type is used when no Will is in existence. A third type is used when a Will is in place, but an Executor hasn’t been named or is otherwise unavailable.
If you’re not sure which petition to use, you can simply ask the county clerk for guidance when you visit. Learn more about the different types of petitions used to begin probate in California by reading our guide here.
Can I Do Probate On My Own in California?
Yes, you can absolutely conduct the probate process on your own in California. There are no laws that require you to hire a probate or estate planning attorney, which can be a relief if resources are tight.
However, the probate process can be tricky to navigate. It’s helpful to stay informed as possible by reading educational guides such as this, understanding the laws and materials provided by the California Probate Code and county websites, and even asking for advice from friends and family who have gone through the process before. (Be careful with the latter, however. Every probate process looks different and varies from estate to estate. What your friend or relative may have experienced could be different from your unique situation.)
There are some cases in which an estate is complex. At worst, litigation could arise due to inheritance disputes or creditor claims. In these circumstances, you may need a stronger support system. Trust & Will’s Probate offers families an affordable alternative to hiring an attorney. This multi-tiered product allows you to move through the probate process with confidence. You can choose between the Concierge or Attorney options.
How to File a Petition for Probate in California
Filing a petition for probate in California is quite simple. First, locate the decedent’s Will and verify that it exists. You’ll also want to obtain a certified copy of their death certificate. These will be filed with the Superior Court located in the county in which the decedent resided, along with the actual petition. In California, the Petition for Probate form is Form DE-111. It is conveniently provided electronically so that the information can be typed and printed. The form is then notarized and signed.
Last but not least, the petition and required documents are officially submitted and filed with the court. Note that the filing fee in California is currently $435.00.
This is an abbreviated overview of how to file a petition for probate in California. Read How to File a Petition for Probate in California to get your step-by-step guide.
Learn More About the Probate Process
Probate is a mandatory legal process that oversees the distribution of a deceased person’s assets and property. (There are a few key exceptions to probate in which the requirement may be waived.) When a loved one passes away, someone must take the matter into their own hands by filing a petition for probate of Will. However, not just anyone can file to open probate. In the state of California, the probate petition is ideally filed by the Executor named in the Will. If a Will or an Executor is unavailable, then a relative or valid beneficiary of the decedent can also file the petition.
We also talked about how you can conduct the probate process on your own. However, probate is a complex legal process that can take some time to understand. A great place to start is to read our full probate guide, which also includes tips on how to avoid it if possible. If you find that you’d like some assistance navigating the probate process, be sure to explore Probate, our latest product! Whether you’d like to take the do-it-yourself approach or have additional professional support, one of our tiered services will fit your unique needs. You’ll feel much better moving through the probate process with confidence and at the fraction of the cost of hiring an attorney.
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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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