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bulletProbate Court

Preparing the Petition for Probate
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A diagram of the probate process is available to help you understand the major steps involved in probate administration. You may wish to consult it before continuing.

In this section you can find answers to the following questions:

  1. How do I get appointed as personal representative? Do you qualify and are you entitled to be appointed?
  2. How do I file a Petition for Probate?
  3. How do I complete the forms?
  4. How do I "prove a will"?
  5. Who should get notice of the Petition for Probate?
  6. How do I publish the Notice of Petition to Administer Estate?
  7. What happens if an emergency arises before a personal representative is appointed?
  8. Do I need to file a bond?
  1. How do I get appointed as personal representative? Do you qualify and are you entitled to be appointed?

     
    • Qualifications:
      If you are named in a Will to act as executor, you will be eligible to serve if you are over 18 years old and are not subject to a conservatorship or otherwise unable to perform the duties of a personal representative.

      If you are not named as executor, or if the decedent did not have a Will, you must also be a resident of the U.S. and have priority to be appointed as administrator (if there is no Will) or administrator-with-Will-annexed (if there is a Will but you are not named as executor).

       
    • Priority for appointment:
      If there is no Will, or if the Will does not nominate an executor (or the persons nominated are unable to serve due to death or because they do not want to serve), then persons related to the decedent are entitled to be appointed in the following order.
       
      • Surviving Spouse (BUT: if a divorce action has been filed but not completed before the decedent's death and the surviving spouse was living separate and apart from the decedent at the date of death, then the surviving spouse is entitled to appointment after the decedent's brothers and sisters)
      • Children
      • Grandchildren
      • Other issue
      • Parents
      • Brothers and sisters (including half brothers and sisters, but not stepbrothers and stepsisters – see issue of a predeceased spouse)
      • Issue of brothers and sisters (nieces and nephews)
      • Grandparents
      • Issue of grandparents (aunts and uncles first, then cousins)
      • Children of a predeceased spouse
      • Other issue of a predeceased spouse
      • Other next of kin
      • Parents of a predeceased spouse
      • Issue of parents of a predeceased spouse
      • Conservator or guardian of the estate acting in that capacity at the time of death who has filed a first account and is not acting as conservator or guardian for any other person
      • Public Administrator
      • Creditors
      • Any other person (neighbors, friends, other non-relatives)

      A person who has priority for appointment but does not wish to serve may decline and nominate another person as personal representative. If you wish to appointed but there are other family members higher in priority, each one of those persons must decline to serve, in writing.

      There is no special or printed form to nominate or decline to serve. You must prepare an attachment for each person as a part of the Petition for Probate. A person named as executor may also decline to serve as executor and nominate another person, but an executor does not have the right to name a successor executor or co-executor.

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  2. How do I file a Petition for Probate?
     

    Step 1
    Prepare and file the following forms (you will need to provide the original and at least one photocopy of each form). You should call the Probate Calendar Clerk in advance so that a hearing date can be assigned:

     

    Step 2
    Give proper notice by mail to all interested persons.

    Step 3
    Arrange for publication in the proper newspaper. (List of local newspapers)

    Step 4
    File the Proof of Service by Mail (see section on "Who should get notice") and Proof of Publication (see section on "How do I publish") with the court.

    Step 5
    File your Bond, if required.

    Step 6
    Appear before the court at the scheduled hearing date. After the hearing, file the signed Order for Probate and Letters in the Clerk's Office and get certified copies, if desired.

     

  3. How do I complete the forms?

    The court staff personnel cannot advise you how to complete the various forms required as part of the probate proceeding. However, the following general guidelines may be helpful as to each form:

     
    • Petition for Probate:
      Each question must be answered and each section must be fully completed. If a question or section refers to an Attachment, that information must be included on a separate sheet of paper (or document, if required) and attached to the Petition. Failure to complete all sections of the Petition for Probate, including attachments, may cause the hearing date to be continued until written supplements are filed to provide the missing information. See Probate Court Description: General Information for Navigating the Probate Court System. 

      The number of attachments required for your Petition will depend on the particular circumstances involved in each decedent's estate. Attachment 8 is required on all petitions. See Local Family Rule 3 for additional information concerning persons and information to be listed on Attachment 8. Also see Local Probate Rule 2 D for additional information that must be provided if a person's address is unknown. Also see notice and wills (if the decedent left a Will) located below in this section.

      If you are uncertain about the meaning of any of the words in the Petition, check the Glossary section of this website to see if that word is defined or explained.

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    • Notice of Petition to Administer Estate:
      This form is used for two purposes: 1) for newspaper publication, and 2) to notify the persons who are entitled to receive notice about the hearing date. Complete the front side of the form and file it with the Petition for Probate. You will need the original and at least one copy.

      The Filing Clerk will keep the original and return the copy (or copies) to you. Do not just put the copy in your file. You will need to use this form to give notice to interested persons and for publication.

       

    • Duties and liabilities of personal representative:
      This form summarizes in general form the duties and obligations of the personal representative. Each person to be appointed must sign the reverse side of the form.

       

    • Order for probate:
      The original and at least one copy of this form should be submitted to the court along with the other forms. You will not get any copies back until after the hearing, if the judge grants the Petition for Probate and appoints you as personal representative.

       

    • Letters:
      This form serves as the oath of office for the personal representative and may be given to anyone who needs proof that you have been appointed as the personal representative and have authority to act on behalf of the estate. Each person to be appointed must sign the form. (If more than one person is to be appointed, both or all of them must sign the same form.) This form should be given to the Filing Clerk along with all of the other forms, but the clerk will not file the Letters or return any copies to you at the time of filing.

      The form will be placed in the judge's file for the Probate Examiner to review prior to the hearing. If you are appointed, the Letters will be filed and issued by the Filing Clerk. You can get as many copies as you need at that time or at any later time.

      Institutions such as banks or title companies generally require certified copies, for which there is an additional fee. Some institutions, such as stock transfer agents, also require that the Letters be submitted within 60 days of the date when they are certified by the Filing Clerk.

       

    • Proof of holographic instrument:
      This form is required if the decedent left a holographic (handwritten) Will. A copy of the Will must be attached as Attachment 4.

       

    • Proof of subscribing witness:
      This form is required if the decedent left an attested Will (or codicil) that is not self-proving (this usually occurs on wills executed before 1985). You must locate one of the witnesses to the Will (or codicil) who can sign the form to prove the authenticity of the Will. A copy of the Will must be attached as Attachment 1.

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  4. How do I "prove a will"?

    There are basically three types of wills: Attested Wills, Holographic Wills, and Statutory Wills.

    A Will is "proved" and will be admitted to probate if it has been prepared and executed correctly under California law by an adult who at the time of signing had testamentary capacity and was not acting under undue influence.

    General information about the different types of wills is as follows:

     
    • Attested Wills (also known as Witnessed Wills):
      Attested Wills are usually prepared by an attorney, in typewritten form, and are signed in front of two (or three) disinterested witnesses who are not receiving any gifts under the Will. An attested Will is self-proving if the attestation clause signed by the witnesses contains a statement that the witnesses are signing under penalty of perjury.

      A self-proving Will can be admitted to probate without the testimony of any of the subscribing witnesses.

      A pour-over Will is an attested Will (and may also be self-proving) that is prepared in connection with a revocable trust and gives all of the decedent's property that is subject to probate to the trustee of the revocable trust.
       
    • Holographic Wills:
      Holographic Wills are handwritten wills prepared by a testator in his or her own handwriting. Holographic wills do not have to be signed in front of witnesses or notarized. A holographic Will may be admitted to probate if the testator's handwriting can be proved by the testimony of at least one witness who was personally acquainted with the testator and has personal knowledge of the testator's handwriting.
       
    • Statutory Wills:
      Statutory Wills are fill-in-the-blank, pre-printed wills whose form and content is specifically prescribed under California law. A statutory Will is a form of attested Will that must be signed in front of (at least) two witnesses. It is self-proving because the required declaration under penalty of perjury is included in the printed form.

      However, the testator must use great care to follow carefully the instructions for choosing an executor and deciding how property is to be distributed in order to complete the Will properly.

     

  5. Who should get notice of the Petition for Probate?

     
    • Persons entitled to notice:
      All persons or entities (such as churches or other charities) named in the Will, including each person or corporation nominated as executor, and all persons who would be entitled to inherit as heirs by intestate succession (even if the decedent left a Will) are entitled to receive notice of the Petition for Probate.

      See Local Probate Rule 2 D for additional information that must be provided to the court if a person's address is unknown so that notice cannot be given. In that situation, you must make a reasonable effort to locate the missing person and file a declaration or affidavit to tell the court what steps you have taken.

      If a citizen of a foreign country dies without leaving a Will or leaves a Will that does not name an executor, or if it appears from the Will that property will pass to a citizen of a foreign country, then notice must also be given to a recognized diplomatic or consular official of the foreign country, if that official maintains an office in the United States.

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    • Notice requirements:
      Notice must be given by first class mail or by personally delivering a copy to each person or entity at least 15 days prior to the hearing. Each person should receive a copy of the "Notice of Petition to Administer Estate" showing the hearing date information. It is also recommended (but not required) that each person be sent a copy of the Petition for Probate with all attachments.

      Note: If you are the person who is asking to be appointed as personal representative, you cannot mail the copies but must have someone else who is not a party mail the documents for you. After the copies have been mailed or delivered, have the person who mailed the documents complete the Proof of Service by Mail on the reverse side of the Notice of Petition to Administer Estate and sign the Proof of Service by Mail.

      Check to make sure that all of the persons and entitles listed on Attachment 8 of the Petition for Probate have been given notice. If additional space is needed, attach a separate page. File the signed Proof of Service by Mail with the court.

     

  6. How do I publish the Notice of Petition to Administer Estate?

     
    • Time and manner of publication:
      A copy of the Notice of Petition to Administer Estate must be published three times in the legal notice section of a newspaper of general circulation in the city where the decedent resided, with at least five days between the first and last publication (not counting the publication dates). The first publication date must be at least 15 days prior to the hearing.

       
    • Proper newspaper:
      It is very important to publish the Notice of Petition to Administer Estate in the proper newspaper since the cost of publication is expensive and may be several hundred dollars. If the city where the decedent resided publishes a qualified newspaper, that newspaper must be used, even if other newspapers are also sold or distributed within the city (such as the San Jose Mercury News) and the decedent never read the designated newspaper.

      See Attachment PB-4000 of the Local Probate Rules for a list of approved newspapers for Santa Clara County with phone numbers, publishing deadlines and estimated fees. Most newspapers will require payment in advance.

      You must contact the newspaper and provide them with a copy of the Notice of Petition to Administer Estate. Pay close attention to the publishing schedule and deadlines so that the publication can be completed within the time required by law, especially if the newspaper is published only once a week! Make sure the front side of the Notice has been completely filled out. Missing or incorrect information could result in defective publication and extra cost to have the Notice re-published.

      After publication has been completed, an Affidavit of Publication must be filed with the court. Ask the newspaper whether it will file the Affidavit directly with the court or send it to you. Remember, it is your responsibility to make sure that the Affidavit is filed, even if the newspaper says they will do it for you.

     

  7. What happens if an emergency arises before a personal representative is appointed?

    Appointment of a Special Administrator:

    It generally takes four to six weeks from the time a petition for probate is filed until Letters can be issued to the personal representative. If an emergency situation exists so that appointment is urgently needed before the Petition for Probate can be heard by the Probate Judge, you may file a separate Petition for Letters of Special Administration. Letters of Special Administration are temporary Letters that can be approved by the Probate Judge for a specific purpose on an ex parte basis (without a hearing).

    Typical situations where Letters of Special Administration would be appropriate include where the decedent owned a business and a legal representative must be appointed to run the business and sign payroll checks. Letters of Special Administration could also be issued if the decedent sold real property and opened an escrow but died before the escrow was closed.

    A Petition for Letters of Special Administration will not be approved unless a Petition for Probate has also been filed. You should use the Petition for Probate form, Judicial Council Form DE-111, including an Attachment under Section 3.f.(3) specifying the reason why Letters of Special Administration are needed and the specific powers needed. You should then make an appointment with the Probate Staff Attorney to review the Petition for Letters of Special Administration.

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    You must also bring an Order Appointing Special Administrator and signed Letters of Special Administration. The Probate Staff Attorney will review the documents to make sure they are properly completed and that they are clear as to the specific authority needed. The Probate Staff Attorney will then present the Petition for Letters of Special Administration to the Probate Judge.

    If the Probate Judge approves the petition, you can pick up the signed Order and Letters at the Probate Filing Window. If you would like certified copies of the Letters, a separate fee will need to be paid.

    Letters of Special Administration are valid only for a limited period of time, generally until the hearing date on the Petition for Probate. During the period when the Letters of Special Administration are in effect, the personal representative will be referred to as a Special Administrator, even though he or she may be nominated in the decedent's Will as executor.

    In addition, Letters of Special Administration will ordinarily be approved only for the specific purpose requiring immediate attention, and the Order Appointing Special Administrator must include an attachment identifying the specific powers given to the Special Administrator. A Special Administrator will be given general powers of a personal representative only in rare situations where a general personal representative cannot be appointed for a lengthy period of time (for example, because of a Will contest or litigation over who should be appointed as personal representative).

    In addition, publication must have been completed before general powers can be granted, so even though a special a Special Administrator with specific powers or with the limited powers allowed by probate code section 8544 may be appointed on an ex parte basis, a Special Administrator with general powers cannot be appointed on an ex parte basis. See also Local Probate Rule 3 A.


     

  8. Do I need to file a bond?

    A bond is required of all personal representatives to protect interested persons, including beneficiaries and creditors, against the wrongdoing of the personal representative. A bond is not required if the Will waives the bond requirement, or if all beneficiaries sign a waiver of the bond requirement and the written waivers are attached to the Petition for Probate.

    The court will ordinarily require a non-resident personal representative to file a bond even if the Will waives bond.

    If a bond is required, the amount of the bond will be fixed based on the estimated value of the decedent's personal property, plus the value of the decedent's real property (if the personal representative is given full authority under the Independent Administration of Estates Act), plus the estimated value of the annual gross income of all of the estate's property.

    Bond can be reduced by requesting limited authority (so that real property cannot be sold without a court order), or by agreeing to deposit marketable securities and/or cash not required for estate administration into a blocked account that cannot be withdrawn without a court order. See Local Probate Rules 4. A , 4 C and 4. E.

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