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San Diego Probate Series: How to Open a Probate

Every probate has a beginning, middle and an end (so we hope). But you will never get to the middle or end if you don’t get started. How exactly do you open a probate in California?

To open probate you file a petition with the Court, referred to as a Petition for Probate. Luckily in California the Petition for Probate comes on a pre-printed form (form number DE-111). Unfortunately, the form is deceptively complex. There are quite a few boxes and a lot of information you need to know to properly complete the Form. The big issues the Court wants to know about in the Petition are (1) Is there a Will, (2) who is the named Executor (or if no Will, who being nominated as the Administrator), (3) is Bond required, (4) do you want independent powers (more on that later), (5) what’s a rough idea of the estate value, and (6) who are the named beneficiaries in the Will and the heirs at law?

One of the most important issues (especially if you plan on being the Executor/Administrator) is the grant of independent powers under the Independent Administration of Estates Act (called “IAEA” for short). Independent powers allow the personal representative to take certain actions without court approval. Independent powers can be limited or general, with general powers giving the widest leeway to the personal representative including the right to sell real property. If you have an estate with real property, independent powers makes the selling process much easier to navigate because you do not need court approval. Without these powers, you have to find a buyer and then submit the real estate sales contract to the court for approval, which takes a fully noticed hearing and requires open bidding on the property in court.

There’s a trade-off however to independent powers, you usually have to post a bond to be granted the powers, unless the Will waives bond.

After you have the petition ready to go, you need a few additional forms, including the Duties and Responsibilities of the Personal Representative. You then file all the forms with the Court, you are given a hearing date, and you notify all beneficiaries and heirs-at-law of the hearing date using form DE-121. You also have to publish notice of the initial hearing in a local newspaper.

You then show up to the initial hearing and find out if you are appointed. Usually a couple of weeks before the hearing date, the court will publish notes on your petition on the court website. You can look at the notes to see if the Court has any concerns regarding your petition. Some concerns can be addressed by filing a supplement before the hearing. Other problems require a continuance of the hearing—such as failing to provide proper notice of the hearing.