How to Fill Out a Probate Petition in California

How to Fill Out a Probate Petition in California

This is a step by step guide on how to fill out a probate petition in California. The initial petition that you will need to fill out to start the probate process is Form DE-111. You can find the form here Form DE-111. This form will be filed with the court to start the probate process and get a personal representative or executor appointed to the case. Lets get started:

First Box-Attorney or Party Without Attorney

1. Name , address, telephone and email: List your name and address. You are the petitioner who is seeking to be appointed personal representative or executor of the estate. Provide your telephone and email.
2. Attorney For: If you are representing yourself than you can list “pro se” or “self–represented“.

Second Box-Superior Court of California, County of

1. Address and Branch– List the street address and branch name of the superior court where you will be filing the form. At the top of this box you will provide the county where it is being filed. The county where you file is either where the decedent lived at the time of death or where they owned property if they lived outside of the California. Your county may have a specific branch where probate proceedings need to be filed. Check on the superior court’s website for that county to find out in which of the branches you file the probate petition. Below is a list of the Probate courts in Southern California to file the probate petition:
   • Orange County– Central Justice Center, 700 Civic Center Drive, Santa Ana, CA 92701
   • Los Angeles– Either – Stanley Mosk Courthouse, 111 North Hill Street, Los Angeles CA 90012, or Michael Antonovich Antelope Valley Courthouse 42011 4th Street West, Lancaster CA 93534.
   • Riverside County-Riverside Probate Court. 4050 Main Street. Riverside, Ca. 92501. Temecula Probate Court. 41002 County Center Drive #100. Temecula, Ca. 92591. Palm Springs Court. 3255 E Tahquitz Canyon Way. Palm Springs, CA. 92262.

Third Box- Estate Of

1. You need to list the decedents name (the person who passed away) and any aliases they had by using “aka”. Be sure to include names they used on title to real property, vehicles and bank accounts. Listed their most common legal name followed by name variations using “aka”.

Fourth Box- Petition For

1. You will check up to 4 boxes depending on your particular situation. Lets start with each individual box and determine which boxes you need to check:
   • Will -If there is a copy of a will whether original or copy then you will select one of the following boxes
     • Probate of Will and for Letters Testamentary -Select this box if there is a will and you are named as executor.
       • Select the Lost box only if you do not have a copy of the original will but you have a copy of the will or other evidence of the will.
     • Probate of Will and for Letters of Administration with Will Annexed -Select this box if there is a will, but you are not named as executor either because there is no executor named or the person who in named does not wish to serve and there is no successor executor named.
       • Select the box Lost only if the original will is lost, but you have other evidence of the will such as a copy of the will.
   • No Will– If the decedent left no will then you will not be selecting the first two boxes.
     • Letters of Administration – You will select this box if the decedent left no will.
   • Will or No Will-This section applies regardless of whether there is a will or no will.
     • Letters of Special Administration– You only select this option in an emergency situation where you need to have the court appoint a personal representative right away. Generally appointing an personal representative takes about 4 to 6 weeks but in exigent circumstances you can have a temporary administrator appointed within 24 to 48 hours.
       • Examples of possible situations are where you need this:
         • Need to Continue Running a Business
         • Protect Assets
         • Facing a Foreclosure
       • With General Powers– You would only select this box if you want the Special administrator to have the general powers of a personal representative. This is rarely given because generally you are appointing a special representative for a specific purpose that requires urgent attention.
     • Authorization to Administer Under the Independent Administration of Estates Act– This option allows the personal representative to take action without seeking court approval.
       • Will-If there is a will that prohibits the use of this act then do not mark this. If the will does not prohibit this then mark it.
         • With Limited Authority– Mark this box is you are not planning to sell real property or deal with real property during the probate process.
       • There is No Will-Mark this box since it will facilitate the personal representative taking action without having to seek court approval.
         • With Limited Authority– Mark this box is you are not planning to sell real property during the probate process or deal with real property such as: 1 ) Sell or exchange real property 2) Grant an option to purchase real property. 3) Borrow money with the loan secured by an encumbrance upon real property,

Filling Out the Questions on the Probate Petition

The probate petition has a total of 9 questions with sub-questions. Lets get started on how to answer these questions.

Question 1- Publication will be

• Specify Name of newspaper – Once you file the Probate Petition you will be provided a hearing date. You need to fill out the Notice of Petition to Administer Estate with the hearing date. You will need to give notice of this hearing date to certain people including publishing the Notice of Petition to Administer Estate in a newspaper. The Notice of Petition to Administer Estate can be found here: DE-121. To find the newspapers where you can publish your notice you can check with your superior court website for information. In Orange County you can find the list here: Orange County Newspapers of General Circulation for Probate . Once you select the newspaper then list the name of the newspaper in the petition.
  • a. Publication arranged -Mark this box if you have already arranged the publication of this notice.
  • b. Publication to be arranged-Marks this box if you have not yet arranged the publication of the notice with the newspaper.

Question 2 -Petitioner

• Name Each– List your name as the person that is petitioning the court to become the estates Personal Representative. If there is more than one petitioner list all of the names.
• Question 2a – Mark this box if you have a will that you are going to be admitting into probate.
• Question 2b– Name the person that will be named as executor, administrator, or special administrator.
  • b(1) Executor -Mark this box if you are the person named as executor in the will
  • b(2) Administrator with will annexed -Mark this box if there is a will that does not have an executor or the executor is not willing to serve.
  • b(3) Administrator – Mark this box if there is no will and the person died intestate.
  • b(4) Special Administrator -Mark this box if you are seeking the appointment of a special administrator.
    • With general powers -Check this box if you are seeking that the special administrator be given general powers.
• Question 2c–Full or limited powers
  • Full -Mark this box if you want the personal representative to have full powers including the power to sell or exchange real estate.
  • Limited Authority -Mark this box if you want to limit the powers of the personal representative so that they cannot take certain actions regarding real estate without court approve.
• Question 2d
  • (1) Bond not required for the reasons stated in item 3e.
    • Mark this box if bond is not required because
      • The will waives bond-Check the will to determine if bond is waived
      • Special administrator is the named executor and the will waives bond.
      • All of the beneficiaries in the will are adults and they all waive bond, and the will does not require it.
      • If there is no will, and all of the heirs at law are adults and have waived bond.
      • The sole personal representative is a corporate fiduciary or an exempt government agency.
  • (2) $ bond be fixed. Mark this box if the will requires a bond. You will list the amount of the bond that you want here. Generally this is based on the value of the assets in the estate that are liquid. Liquid assets are those that can easily be converted into cash. This includes money in bank accounts.
  • (3)$ in deposits in a blocked account be allowed. You mark this box if you are seeking to reduce or eliminate a bond requirement by having funds held at an institution that are blocked from withdraw without court approval. You need to list the amount of the assets deposited at the institution and the name and location of the institution.
• Question 3
  • a. Decedent dies on: List date of death, at (place): Enter the city and state of death
    • (1) A resident of the county named above- You will mark this box if the decedent is a resident of the county where you are filing the petition.
    • (2) A non resident of California and left and estate in the county named above located at -Mark this box if the decedent was not a resident of the county where you are filing the petition, but left real estate or tangible personal property in the county. You need to provide the location of the tangible personal property or real estate under this section.
  • b. Decedent was a citizen of a country other than the United States. Mark this box if the decedent was a citizen of another country and name the country. Mark this box also if decedent was a citizen of the United States and another country.
  • c. Street address, city and county of decedent’s residence at the time of death (specify): List the city, county and address of decedent’s residence at the time of death.
  • d. Character and estimated value of the property of the estate– Do not list assets that can be transferred without probate such as property titled in joint tenancy or community property with right of survivorship. If an asset is community property you will only list the portion value that belongs to the decedent.
    • (1) Personal property– Listed the estimated value of personal property including household goods, vehicles, personal effects, jewelry, bank accounts, stocks, and bonds, etc.
      • For personal property such as furniture or personal effects use the second hand value.
      • Vehicle Value- You can use Kelley Blue Book Value
      • Bank Accounts -Put the balance on the date of death for checking and savings accounts.
    • (2) Annual Gross Income from:
      • (a) Real Property: -List the gross income made from real property which includes rental income.
      • (b) Personal property – List the annual gross income made from personal property including rental income from equipment and vehicles, and the yearly amount for the sale of personal property.
    • (3) Subtotal– Add items 1 and 2
    • (4) Gross fair market value of real property– List the fair market value of real property. This can be done by looking at the sale of comparable assets or expert opinion.
    • (5) Encumbrances: List mortgages, equity lines, and secured debts against the property. List any liens against the property.
    • (6) Net value of real property: Deduct the encumbrances from the fair market value of real property.
    • (7) Total: Add the total value of personal property from item 3 with the net value of of real property.
  • (e)Only Mark one of the boxes if a bond is not required based on:
    • The will waives bond-Check the will to determine if bond is waived in the will.
    • Special administrator is the named executor and the will waives bond.-The person you are seeking to appoint as a special administrator is named as an executor in the will and the will waives bond.
    • All of the beneficiaries in the will are adults and they all waive bond, and the will does not require it. If the will does not waive bond and does not require bond then you can use this if all the beneficiaries are willing to waive bond.
      • You need to have each beneficiary of the will sign form DE-142 and file it as an attachment to the Probate Petition.
    • All of the heirs at law are adults and have waived bond. If there is no will, and all of the heirs at law are adults and are willing to waive bond you can check this box.
      • You need to have each heir sign form DE-142 and file it as an attachment to the Probate Petition.
    • The sole personal representative is a corporate fiduciary or an exempt government agency.
  • f (1) Decedent died intestate. Mark this box only if the decedent left no will.
  • f (2) Copy of decedent’s will dated: Mark this box if there is a will and list the date of the will. Attach a copy of the will as Attachment 3f(2)
    • Codicil dated: Mark this box only if there is a codicil (amendment to the will) and the date. If there is none then do not Mark this box. Attach a copy of the codicil as Attachment 3f(2)
    • The will and codicils are self-providing . Check this box if the will
      • Contains an Attestation clause -a written, signed statement under penalty of perjury by witnesses affirming that the will was properly executed .
      • If there is No Attestation Clause –
        • For Typewritten and witnessed will– Prepare and File Proof of Subscribing Witness DE-131. This is a signed declaration under penalty of perjury by a witness of the will that it was properly executed. Attach a copy of the will that has been stamped by the court clerk.
          • Pointer-May be a good idea to file even if there is an attestation clause since your local court may require it.
        • For Handwritten will– Prepare and file Proof of Holographic Will DE-135. This needs to be signed by someone who is familiar with the decedents handwriting and can declare under penalty of perjury that the writing on the holographic will is decedents. Attach a copy of the holographic will.
  • f (3) The original of the will and/or codicil identified above has been lost. Check this box if the original will or codicil is lost.
    • You will need to attach a copy of the will that was lost or
    • Provide a statement indicating what the will stated and why it should not be presumed that the testator destroyed the will with intent to revoke it.
  • g. Appointment of personal representative. You need to mark all the boxes that apply.
    • (1) Appointment of executor or administrator with will annexed. This section only applies if there is a will. Do not mark if there is no will.
      • (a)Proposed executor is named as executor in the will and consents to act. Check this box if executor that is being proposed is the same one that is named in the will.
      • (b) No executor is named in the will.
        • If no executor is named under the will then a personal representative will be appointed based on order of priority. (See below for order of priority)
      • (c) Proposed personal representative is a nominee of a person entitled to Letters. Only mark this box if the proposed personal representative is being nominated by a person who is entitled to serve as personal representative. The priority of appointment to serve as personal representative when the will does not nominate an executor is:
        • Surviving Spouse
        • 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)
        • Exceptions:
          • If you are a beneficiary of 50% or more of the estate and you are a resident of the US, then you have priority.
          • If you are a beneficiary under the will you have priority over those that are not.
        • Attach the Nomination-Sample can be found here: Nomination of Administrator with Will Annexed.
      • (d) Other named executors will not act because of . Check this box if the named executors cannot or will not act and state reason:
        • Death
        • Declination – If they decline to act as executor then file an attachment that indicates that they decline to act and have them sign it.
        • Other reasons-State other reasons if the executor cannot act such as due to illness or incapacity.
        • Continued in Attachment 3g(1)(d) – Check this box if you are attaching a declination to act by a named executor or providing an additional explanation why the named executor will not act.
    • (2)Appointment of Administrator -This section only applies if there is no will.
      • (a)Petitioner is a person entitled to Letters. Check this box if you are entitled to priority based on the list above. You can explain priority through an attachment. You can find a sample here: Appointment of Administrator
      • (b)Petitioner is a nominee of a person entitled to Letters. Check this box if the administrator named is being nominated by a priority person. Attach a nomination to the petition. You can find a sample here: Nomination of Administrator.
      • (c)Petitioner is related to the decedent as (specify). Mark this box if you are related to decedent and specify relationship.
    • (3) Appointment of special administrator requested. Check this box only when you are seeking immediate appointment of a special administrator because of exigent circumstances. You will need to add an attachment and specify on what grounds and what powers you are seeking for the special administrator.
    • (4) Proposed personal representative would be a successor personal representative. You would only mark this box if a previous personal representative was appointed and you are seeking to be the successor to that person.
  • h. Proposed personal representative is a: Mark all that apply-You do not have to be a resident of California to be a personal representative.
    • resident of California
    • nonresident of California (specify permanent address)
    • resident of the United States
    • nonresident of the United States

• Question 4 –Decedent’s will does not preclude administration of the estate under the Independent Administration of Estates Act. Check this box unless the will prohibits using this act to administer the estate.
• Question 5-This is used to determine your heirs at law.
  • (a) Decedent was survived by
    • (1) Spouse or (2) No Spouseas follows-Check only one of these.
      • If no spouse: (a) divorced or never married or (b) spouse deceased. (Check one)
    • (3) registered domestic partner or (4) no registered domestic partner (Check one of these)
    • (5) child or (6) no child. Check only one of these. If there is a child then:
      • (a) natural or adopted or (b) natural adopted by a third party. Check one of these if there is a child.
    • (7) issue of predeceased child or (8) no issue of predeceased child. Check one of these boxes. Issue refers to child, grandchild etc of a child who previously died of the decedents.
  • (b) Decedent was or was not survived by a stepchild or foster child or children who would have been adopted by decedent but for a legal barrier.
    • You wold mark this box if you are aware of a stepchild or foster child or a parent-child relationship other than biological parent-child relationship.
• Question 6 -You will only complete this section if the decedent was survived by a spouse or domestic partner but no issue (child, grandchild, great grandchild) or if there is no spouse, domestic partner or issue. If there are any children, grandchildren or great granchildren alive then do not complete this section.
  • Survived by spouse or domestic partner but no issue, then only one of these applies. Mark the box that applies first. Do not mark any other box after you select the first box that applies.
    • (a) Decedent was survived by a parent or parents who are listed in Item 8.
    • (b) Decedent was survived by issue of deceased parents, all of whom are listed in item 8. Issue of deceased parents includes decedents brothers and sisters or their children if they are deceased.
  • Not survived by spouse or domestic partner or issue. Mark the first one that applies from the list from a. to h. Mark only one box.
• Question 7– Complete only if there is no spouse or issue that survived decedent. If there any children or spouse alive then do not complete this section.
  • (a) Decedent had no predeceased spouse. Mark only if the decedent had no spouse who died before them.
  • (b) Decedent had a predeceased spouse who-Mark only if decedent had a spouse who died before them. Then mark any answers that apply below
    • (1) Died not more than 15 years before decedent and who owned an interest in real property that passed to decedent.
    • (2) Died not more than five years before decedent and who owned personal property valued at $10,000 or more that passed to decedent.
      • If you marked 1 or 2 above then you must mark one of the categories below. Mark only the first one that applies from (a) to (e)
    • (3) Neither (1) or (2) apply. Check if the above two situations do not apply.
    • Note: This section is used to determine whether the issue or next of kin of a predeceased spouse are entitled to receive assets. If 1 or 2 apply then that property passes by intestate succession to the issue or next of kin of the predeceased spouse.
• Question 8–
  • If there is a Will or any Codicil–List all names, relationships to decedent, ages and address of persons mentioned in the will or codicil.
    • Beneficiaries
      • Deceased beneficiaries – List all deceased beneficiaries. List name, relationship and date of death.
        • If deceased beneficiary is related to deceased then state if they had issue:
          • List issue of deceased beneficiary and state relationship to predeceased beneficiary.
        • List alternative beneficiaries for unrelated beneficiaries.
      • Contingent beneficiaries-List all contingent beneficiaries.
      • Removed beneficiaries- List all beneficiaries that were named even if later removed by amendment.
      • Beneficiary that is a citizen of another county–
        • List the beneficiary who is a citizen of another county.
        • List the consul of another county if the beneficiary is a citizen of another county.
      • Minor beneficiaries-List minor and person that have custody of minor.
    • Other Parties to List
      • Personal Representative of beneficiary who died after decedent-List personal representative of a beneficiary who died after decedent.
      • Non-petitioning executors named in a will and earlier wills as well as alternative executors.
      • Trustee and Guardianship– If the Will devises assets to a fiduciary such as a trustee of a trust or guardianship then list the fiduciary and the beneficiaries of the trust or guardianship.
    • Ages-For ages you can list “Adult” if over the age of 18 and “Minor” if under the age of 18.
    • Relationship to Decedent– List the relationship to decedent and if unrelated listed “Unrelated”
    • Name the following regardless if there is a Will or Not.
      • All persons checked in items 2, 5,6 and 7 of the Petition.
• Question 9 -List the number of pages attached. Include all attachments you will be filing with petition.
• Declaration Under Penalty of Perjury:
  • Date, print and sign your name as petitioner.

You Are All Done! It’s Time to File Your Probate Petition.

Once you have filed your probate petition you need to give notice to interested parties using Form De-121. For instructions on filling out this form go to How to Fill Out Notice of Petition to Administer Estate .