Estates That May Need Formal Probate

Any assets that do not qualify for a simple transfer process will likely have to go through formal probate. And, if the dead person’s property is worth more than $166,250, none of the exceptions apply. You must go to court and start a probate case.

To do this, you must file a Petition for Probate (form DE-111). This one form has different options, such as:

  • Petition for Probate of Will and for Letters Testamentary
  • Petition for Letters of Administration

Talk to a lawyer if you are not sure which option you should choose on this form.

Steps to Take If the Case Belongs in Probate Court

1. The custodian of the will (the person who has the will at the time of the person’s death) must, within 30 days of the person’s death:

  • Take the original will to the probate court clerk’s office within 30 days. Contact your superior court courthouse to find out where the probate court clerk’s office is located.
  • Send a copy of the will to the executor (if the executor cannot be found, then the will can be sent to a person named in the will as a beneficiary).

If the custodian does not do these things, he or she can be sued for damages caused.

NOTE: If there is no will and a court case is needed, the court will appoint   an administrator to manage the estate during the probate process. The   person who wants to be the administrator must file a Petition for Letters of Administration (form DE-111). The administrator usually is the spouse,  domestic partner, or close relative of the dead person.

2.  Someone, called "the petitioner," must start a case in court by filing a Petition for Probate (form DE-111). The case must be filed in the county where the person who died lived (or if the person lived outside of California, in the California county where that person owned property).

      The Petition for Probate has different options, like:

  • Petition for Probate of Will and for Letters Testamentary
  • Petition for Probate of Will and for Letters of Administration with Will Annexed
  • Petition for Letters of Administration

Note: To start a probate case you will need more forms than just the Petition for Probate form.  Talk to a lawyer for help with your case.

3.  After a probate case is filed:

  • The probate clerk sets a hearing date.
  • The petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus the surviving family members even if there is a will and they are not named in it. Any person who is interested in the court case may file a Request for Special Notice (form DE-154), which means that they must receive a copy of paperwork filed by the person who is chosen to manage the estate.
  • The petitioner CANNOT mail the notice. It must be mailed by any other adult who is not a party to the case.
  • The petitioner must arrange for notice to be published in a newspaper of general circulation.
  • A court probate examiner reviews the case before the hearing to see if it was done correctly.
  • Once all the paperwork has been reviewed by the examiner and corrected, if necessary, the judge decides who to appoint to be in charge as the personal representative of the estate (also called the “administrator” or “executor”).
  • The personal representative gathers up the assets and prepares an Inventory and Appraisal (form DE-160) to be filed.  The personal representative usually will also need to contact a probate referee to value the nonmonetary assets. Find the contact information for a probate referee in your county. (Get more information on probate referees.)
  • The personal representative provides formal notice to creditors with the Notice of Administration to Creditors (form DE-157) and pays the debts.
  • A final personal income tax return is prepared for the person who died.
  • The probate court figures out who gets what property.
  • The personal representative may be required to file a Report of Sale and Petition for Order Confirming Sale of Real Property (form DE-260) so that sales of real property are confirmed by the court.
  • If the estate earned any money (such as interest or profit in a sale), the personal representative will have to submit a final estate tax return.
  • The personal representative reports to the court on how the estate was handled. This report is a final plan and accounting. The report is scheduled for hearing so the judge can review how the personal representative handled everything. The judge needs to be satisfied that everything has been properly taken care of.
  • After filing with the court any required final receipts to show that everyone received their property from the estate, the court discharges the personal representative from his or her duties.