California Petition for Probate–Form DE-111

[Music] Does Keith Davidson at Albertson and Davidson in this video I'm going to show you how to fill out a petition for probate this is form de 1:11 and a number of years ago I actually did a video explaining how to fill out a petition for probate but since that time the form has actually changed quite a bit they've made a lot of updates to the form and they changed round the information that you have to include on the form so in this video we'll walk through the current form as it currently exists and we'll see how to properly fill out a petition for probate so if you're going to open a probate estate for somebody either because they died with a will and you need to transfer some property under the will or they died without a will and you have to do an intestate estate this is the form that you're going to need to start the process so as with all of our forms in our form vault series I always start just by going to Google and that's what I did here and you just search for Judicial Council forms you can go to the California courts website and you're gonna click on probate forms decedent's estates and I happen to know that we need de 111 is the first form up on the page here if I didn't know that I could do a search here by name or by form number so I've brought up the form right here now this form looks like it'd be fairly easy it's a pre-printed form there's just a few boxes you have to check and you can file with the court and you're off to the races the problem is the form is more complicated than it appears and if you check the wrong box or if you fail to check a box that you're supposed to check you're gonna have a lot of problems your petitions gonna be rejected by the court and you're gonna have to go back and start from square one so it really pays to take a little bit of time to really understand what you're doing here and do it properly so we start off at the top by putting in your name so I'm just gonna put my name in here if I were representing myself in this lawsuit then you just put your own name since I'm a lawyer I'm gonna put my law firm information in there as well and of course I have a state bar number that goes there if you don't have a state bar number then you can just leave that area blank we're gonna put in the address that we want to use for purposes of the court we have five offices in California but I'm going to use the Carlsbad address where I spend a lot of my time 92008 all right and you want to make sure you have your phone number on here because the court may need to contact you at some point throughout the process and whatever information you put up here when you file it with the court that's going to be the information that the courts going to use from now on to try to contact you if they need to contact you and that's why you also want to make sure that you have your email in here so the court can contact you if need be gonna put attorney for if I were doing this on my own I'm just representing myself you can type pro / in here or you can just type your own name in here and that way the court knows that you're just representing yourself but since I'm an attorney I'm gonna say that I'm represent representing Bob Smith and this probate estate and we're gonna have to list next the county that we're filing this end so let's say it's Los Angeles County and the street address is 1 1 1 North Hill Street that's the physical court address that you put in there and then under mailing address you need to put in the courts mailing address in this case they're the same but that may not always be the case and then you put in the city and the zip code I don't remember the zip code for Los Angeles but you can look it up and then you put in the the branch name for the court you don't know the branch name you can go to the court website and look it up and if you can't find it there you can leave the branch name blank when you file it this is going to be the estate of and we'll put in Bob's wife Rachel Smith and so that's what this estate is for now right off the bat this section here where it says petition for this is going to be a very confusing section if you don't understand these terms so you really have to pay attention here so this is a petition for and the forum wants to know are you filing a petition for probate of a will and four letters testamentary are you doing a probate of a will and four letters of administration with will annexed are you looking for letters of administration letters of special administration with general powers authorization to administer under the independent administration of estates Act do you have a lost will there's a lot going on here so the first question is do you have a will if so then you're probably going to be checking one of these two boxes so let's check that one for probate of a will is the original will lost I hope not that causes problems if you lose the original will the original will has to be lodged with the court if you lose that original will the law presumes that the will was lost with the intent to revoke it so if that original will isn't around when the when Rachel Smith passes away then the law presumes the will was revoked you can overcome that presumption but you have to show facts to overcome it and that's why the form wants to know do you have a lost will or do you not and then this form is asking are you going to petition for probate of a will and four letters testamentary the only difference between letters testamentary and letters of administration with will annexed is whether or not the person who you want to act as the personal representative is named in the will if a person is named in the will they're the executor and as the executor you're look you're asking for letters testamentary so you just check this first box if the person who you want to act as personal representative is not named in the will but there is a will then you'll check the second box then what you're asking for is you want to admit a will to probate and you want what we call letters of administration with will annexed which is just a very confusing way of saying that the person who's going to act over this estate isn't named in the will if you don't have a will it's just an intestate estate then you're gonna go with letters of administration you're not asking that the court admit a will to probate because there is no will you just need letters of administration for somebody to manage the estate letters of special administration is for emergencies if you need somebody appointed on an emergency basis in order to handle some asset in the estate that's in danger of being lost then you would do that in which case you would not click the letters Administration but we're going to say we're doing a will and four letters testamentary because we're going to say Bob Smith was named in that will to act as executor and then down here the authorization to administer the estate under the independent administration of a state tax we're going to talk about that more later but we do want to click that you almost always want to ask for that if you can get it the case number and hearing date and time and Department we're going to leave blank because the courts going to fill that in for us when we file this with the court so we don't have to know that publication will be so you're gonna have to publish notice of your probate in a newspaper otherwise it can't be granted it can't even be heard so you have to tell the court where you're gonna publish it so you put whatever newspaper you're gonna use right there and either you tell the court I've already requested publication or it's going to be arranged I'll get around to doing this after I file the petition which is normally what we do so we start here with the petitioner who is bringing this again that was Bob Smith he is the petitioner he's the one who's filing this and asking that the court take whatever action is included in this petition and he's requesting that decedent's will and codicil and if any be admitted to probate and whoever the named executor is so we're gonna say that Bob Smith is the named executor we'll type his name in there and he's going to be the executor now you'll see that there's these different terms once again down here there's executor there's administrator with well annexed and there's administrator an executor is somebody who's named in the will to act so if Bob Smith is named in the will then he's an executor if there's a will but Bob Smith is not named in that will somebody else is but that whoever that is they don't want to act so Bob's gonna do it instead then that would be an administrator with will annex that's just a complicated way to say that Bob Smith isn't named in the will but he's gonna act over the will in any of them and then an administrator just means that there is no will so if there's no will it's just an intestate estate you're gonna be an administrator here we have an executor special administrator again is for emergency powers so we're not going to do that we get back to the independent administration of estates Act there's a lot going on with this act and if you really want to look it up go to probate Code section 10400 and start looking through there there's all sorts of powers that an executor can have can be granted or they can do certain things without court approval such as selling real property compromising on debts all that sort of things so we almost always want to ask for full power so we can do as much as possible outside of court if we can there's still things that the executor can't do outside of court they can't pay themselves they can't pay their lawyer and they can't close the estate and distribute the assets out to the beneficiaries by themselves all of that still requires court approval even if you have full powers but we're gonna ask for full powers next is a bond so a bond is kind of like an insurance policy that ensures that the executor doesn't steal any money from the estate and if the executor does steal money from the estate then the beneficiaries can be paid back that money from the bonding company for that reason you almost always want your executor to have a bond because it's just safe it's safer for the beneficiaries but a lot of wills will waive bond because they don't want the estate to have to pay for the cost of that bond although quite frankly most bonds are not that expensive especially considering the protection that you receive for them but if your will waives bond then you would check there there's a few other times when a bonds gonna be waived and we'll talk about that when we get down to 3d if you're not going to weigh bond then you're gonna click here and you're gonna say this is what I want bond to be fixed at and the bond will be furnished by an admitted surety insurer or as otherwise provided by law and so there's insurance companies that are licensed to be able to provide these bonds and you're gonna put the amount of the bond and the amount of the bond is based on the amount of the estate that's liquid so if there's a hundred thousand dollars worth of cash here you're gonna want a bond of at least a hundred thousand and a lot of times you'll end up with the bond a little higher twenty percent higher one hundred and twenty thousand something like that so whatever bond you want you'd specify that you can also ask that the estate Accounts be put into a blocked account that's a little more difficult blocked accounts are very hard to deal with but in certain cases that might be appropriate so we're going to say that the will waves bond but this is where you would fill in the bond here you would put in when the decedent died and so the court needs to know when the person passed away so we'll say October 1st 2018 and they need to know the place where they passed away because that's going to be important as to where the proper place to bring your petition is because the decedent has to have been a resident in the county named above in order for you to bring your petition so if I'm gonna file this petition in Los Angeles County then that has to be the county where the decedent resided at the time of their death if it isn't then you shouldn't be filing this in Los Angeles if they resided in San Mateo County then that's where you should file this not Los Angeles the other alternative is if you have somebody who resides outside of California but they left some real property in the state of California then you would file this in the county where the property was located but most the time you're going to be under 3 a 1 a resident of the county and then right here decedent was a citizen of a country other than the United States if that's the case and you would click this and you would fill in the state or the country where they're a citizen and now the court under C wants to know well what was the address of the decedent at the time of death and so this is where you would fill in whatever their address was so that the court can see that they are in fact a resident of that county where you're filing this petition moving on to the second page we now are gonna fill in some very basic information about the value of the property a lot of times people get a little concerned about filling the sinks they think well I don't really know what the property's worth I don't know how much the property will appraise for this doesn't have to be exact you're gonna do an inventory and appraisal once the estate is open this is just to kind of get the ball rolling to get everybody an idea of how much property there might be in this estate especially the creditors because a lot of creditors want to know you know can I collect from this estate so you'll just fill in the appropriate information you can you know for real property for example you can go to Zillow get some values and just fill it in as best you can and then you'll total it down here at the bottom now we get back to 3e remember when we had that question about whether or not bond was gonna be waived under 3e the court wants to know why bond is waive so it could be that the will waives the bond so the will might say you don't have to get a bond it could be that you're a special administrator and under the will it waives the bond or under two it could be that all beneficiaries are adults and they have waived the bond in writing you have to actually get separate waivers from every single beneficiary in order to qualify for this and if I were a beneficiary of an estate I would not sign one of these but that's up to you everybody is different and so you should look into that or all heirs of Laura Dalton have way bond it's the same thing it's just that errors are people who are receiving without a well it's the same as two except in cases where there's no will so number four is if you hit the sole personal representative as a corporate fiduciary or an exempt government agencies so if the county is is going to be the one who acts as the executor they don't need a bond by law they don't have to do that now we're going to go on F so you're gonna say either decedent died intestate which means that the decedent didn't have a will or you're gonna say here's a copy of the decedent's will dated on whatever date that the will was dated so let's say the will is from January 1st 2005 that's when I was created if you have an amendment to the will which we call a codicil you'll click right here and that way you'll have exactly what you need and you'll attach a copy the Wills and all codicils will be attached to this petition the court also wants to know what the Wills and all consoles are self-proving and you can go to probate Code section eighty twenty twenty I'm sorry 80 to twenty and you'll see what that means there's some language that it will has to have at the end in order for it to be a self-proving will if it is a self-proving will it makes your job a lot easier so you don't have to hunt down those witnesses when you file this petition you just file the will and you're good to go if it's not a self-proving will then you got to find the witnesses and have them sign a form and that can be a real pain because sometimes it's hard to find these witnesses many years later so most wills are self proving and you would check that box and then three is if you lost your the original will so if you have the original will that should be lodged with the court and there's an actual form you just take it down to the courthouse and they keep it forever and ever if you've lost it or if it can't be found at the time of the decedent's death then you've got a problem because there's a presumption that the will was lost with the intent to revoke it and you don't want that you can overcome that presumption but it's not particularly easy so you want to try and get rid of that hopefully you don't have a lost wheel but if you do you need to check this box and you need to put an attachment explaining what happened to the will and why the lost will presumption should not apply to you next we're gonna get to the appointment of personal representative so this is where the proposed executor is named as executor in the will so if that's the case you just go ahead and click that it could be that there's no executor named in the will that's why somebody needs to be administrator with will annexed it could be that somebody's a nominee they also the core under D wants to know well why are the other named executor is not acting so maybe one of the other named executor x' has passed away or they declined to act for some reason they just don't want to do it the court wants to know that right here if you're an administrator then you check one of these boxes so this is where you have an estate without a will and this is where the petitioner is the person entitled to letters for some reason and there's actually a list of priority under the probate code so the spouse has first priority and then the children and and so on and so forth so whoever is going to be acting as the administrator for an estate that doesn't have a will you'd mark the box that shows why you have the right to be appointed it's probably gonna be a most likely okay now under age the court wants to know something about this personal representative the executor or administrator who's going to be acting so first of all are their resident of California the court prefers California residents if they're a non-resident then they want to know well what address where as there is this person's address up every now and again the court will appoint a non-resident of California but this most courts really prefer that somebody resides in this state if they're gonna act as executor and they definitely want them to reside in the United States if they're going to act as an executor going down to the next page number four asked you have to specify that the will does not preclude administration of the estate under the independent administration of estates Act so some wills do say that you can't use that most of them don't but the court wants you to say whether it does or not number five is very important this is going to be everybody who has survived the decedent and you're gonna have to specify everyone so for example was there a spouse you have to click that if there was no spouse then the court wants to know well was it because they were divorced or never married or the spouse was deceased what's the situation they're in California we have registered domestic partnerships you have to say that or no registered domestic partner and then you have to say whether there was children so there's a child are they natural or adopted natural adopted by a third party no child you really have to stop and think about each of these questions when you answer them so if you have one or more children you can just click that box you don't have to click any of these others but if you have no child but issue of a pre deceased child which would be grandchildren then you would click down here number seven so you really have to go through each of these and think about which one applies and then be talks about whether or not the decedent was survived by a stepchild or foster child because there are times when those people who are stepchildren our foster children might be able to receive a portion of the estate especially an intestate estate depending on the circumstances so the court wants to know that under number six this one gets really tricky you really have to read through six carefully so you complete number six if the decedent was survived either by a spouse or registered domestic partner but no issue or no spouse no registered domestic partner or issue that's the only time you're going to fill out number six so if you have somebody who has a spouse and issue then you don't need to do number six it's only if you have a spouse and no issue so it's a very confusing section so make sure you understand what they're asking you and the first one's going to say decedent was survived by parent or parents who are listed in item a essentially the reason why the court wants to know number six is because there's times when somebody other than the spouse is going to be entitled to some of the estate if it passes intestate or there's times when these people listed under A through G of six might be entitled to something from the estate because there is no spouse and there is no issue so the court wants to know this information but be careful because if you have a spouse and issue meaning children of the decedent you can just skip number six altogether just forget it number seven is you complete it only if there is no spouse or issue survive the decedent so again the court needs to know what this information is but only if there's no spouse or issue and that's the only time you're going to fill out number seven otherwise you can skip forward to number eight number eight is where you're going to list everybody that you can think of that needs to get notice of this estate that includes all of the heirs at law and all of the named beneficiaries under the will so let's say that the will leaves everything to a charity but the decedent have five children well you have to name all five kids in here and the charity because the kids are heirs at law they may not be getting anything from the estate but they're legal heirs of the decedent who at least need to get notice of what's going on and so all of those have to be listed in here and the form actually tells you just include everybody that you've stated in items number two five six and seven so sevens here six is here five we filled that out and you could even go all the way up to two which is the people who are going to be named as executor so just go back through the form and for every box that you check to make sure that everybody who meets the description of that goes here it's going to be the spouse the children probably parents if there are no children and the name the beneficiaries under the will they're all going to go here if you don't have enough room you can just click that box and continue it on the attachment and then you're going to tell the court how many pages you have attached at the very end here you're finally going to get to the point where you can put in the name of the attorney put in the name of the petitioner and you can print it out and sign it so I would put my name here I would put my client Bob Smith here and we both would sign this form you also can print this form and save it so you can use it again or change it around if you have to now keep in mind that this form the de 111 is just the first step the first form that you need in order to file to open a probate there's other forms that you need to file along with this one and that'll be the subject of our next form vault video but for this video this is the petition for probate form de 111 and now you know a little something about how to fill out that form. 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