This is how the probate process is begun.

Who Can Initiate Probate?

Under California law, any "interested person" may begin the probate process. Generally this will mean any heir, relative, friend or creditor of the decedent. Anyone named as executor or beneficiary in a Will can initiate probate, as can a successor trustee of the decedent’s trust.

There may be more than one person who wishes to initiate probate, in which case each would have to take steps to begin the process and the court would decide which to appoint as administrator of the estate.

The probate proceeding is begun by filing a Petition for appointment as Administrator of the Estate.

When Must a Petition Be Filed?

There is no specific time that a Petition must be filed. However, an executor named in a Will must file a Petition within 30 days of knowledge of death or the court may hold they have waived the right to appointment.

Likewise, any person holding the Will of a decedent must lodge the original Will with the court clerk in the county of decedent’s final residence within 30 days.

Where Must the Petition Be Filed?

The petition for Probate must be filed in the county in which the decedent was domiciled (permanent residence) or, if not a resident of California, where he or she has property.

Options in the Petition

There are a number of options on the Petition for probate, many depending upon whether the deceased left a will, whether the will named an executor and whether the will waived the requirement that the administrator post a bond.

The person filing the Petition also has the option of asking the court to grant Independent Authority to act. Normally, the law requires that most significant acts by the administrator be approved by the court prior to the act taking place. For example, if the administrator needs to sell the family residence in order to pay bills, or make the distributions called for in a Will, the administrator must first petition the court for the approval of the sale.

With Independent Authority, the same sale can be done without court approval. The sale, is however, subject to challenge at any time during the probate.

The First Steps

Along with filing the Petition for Probate, there must be a publication of a Notice of Petition in an approved newspaper in the same county. This gives notice to all creditors and others who may be interested in the estate of the hearing on the Petition and gives them an opportunity to oppose the Petition. Notice must be given to all heirs and beneficiaries, among others.

The court will set a hearing date for the Petition. If everything is in order on the petition, it will be approved. If there are any defects, and unless one is highly proficient in these matters it is likely there will be some, the matter will be continued until they are cured. If there are competing Petitions by different persons seeking to administer the estate, the matter will be set for formal hearing.

After the Petition is Approved

Under California law, the administrator is required to post a bond equal to the value of the estate in order to be appointed unless the will of the deceased has waived bond.

Independent Authority to Act

In the Petition, authority to act on matters of estate administration may be requested. Ordinarily, most acts of the administrator must be pre-approved by the court. For example the sale of real property requires that a court hearing be set up. At this hearing, the administrator requests approval of the sale to the successful buyer. This sale is subject to any over-bidders at the hearing. The highest qualified bid will get the court’s approval and be the final buyer.

The administrator may wish to avoid this hearing and take on the responsibility of finding a buyer on its own. To do so requires that the court have granted the authority to act independently which is customarily granted.

Finding Out About the Estate

One of the first important duties is to find out what was owned by the decedent and what was owed to others. The gathering of this information is essential for two reasons:

1. The estate’s assets must be stated on an Inventory and Appraisal form. This form is prepared by the administrator and appraised by the Probate Referee. The Probate Referee is appointed by the court to appraise estate assets. All assets except a few that have ascertainable value, such as bank accounts, and in some cases personal possessions of the decedent, must be given a value by the Probate Referee. The administrator can give information to the referee to assist in this process, but it is up to the referee to make the determination. The value so determined is the gross value, not net of debts. This value will determine what the starting point for the administration of the estate is.

2. By law, creditors have 120 days after the issuance of Letters Testamentary to file any claims against the estate. If not filed within that period, they are unenforceable claims. In order to solidify this protection for the estate, it is useful to ascertain the names and addresses of creditors and give them notice of the probate proceeding. In addition, certain government claims may not be subject to this rule and they must be paid. These include Social Security overpayments and Medi-Cal benefits paid on behalf of the deceased.

Paying Debts

If a claim is filed by a creditor, the administrator must either approve or disapprove it. If approved, it usually can be paid from estate funds when possible. If the administrator believes a claim is not valid, a form must be filed with the court denying the claim. The creditor must then sue the estate.

Other items, such as utility bills necessary to keep estate property in good condition must be paid from estate funds.

Letters Testamentary

Once the Petition is approved and the bond posted, the Court will issue a document called Letters Testamentary. This is a form that is a certificate of the authority of the administrator to act on behalf of the estate. It will be required by several institutions in the process of handling the estates affairs.