How Soon After Death Must One Probate a Will in California?

By Vanessa Padgalskas

Probate is a legal process by which a person's assets are distributed after death. Probate in California takes place in the Superior Court of the county where the person died. Many, but not all, estates are subject to probate. A personal representative, also called the executor, must petition the court for probate within 30 days after learning of the decedent's death.

Who Must Petition the Court for Probate

The executor named in the will has the sole responsibility of filing a petition for probate. The decedent -- the legal term for the person who died -- names an executor to administer the estate in his will. If an executor is not named in the will, someone who desires to be the executor should petition the court for probate.

When to Petition the Court for Probate

According to California Probate Code ยง 8001, if an executor named in a will does not petition the Superior Court for administration of the decedent's estate within 30 days after the executor has knowledge of the decedent's death, the named executor may have waived his right to be the personal representative, unless there is good cause for delay.

Protect your loved ones. Start My Estate Plan

Consequences of Not Filing Within 30 Days

The court may appoint an alternative representative if the named executor does not petition the court within 30 days of being notified of the decedent's death. The court will determine whether the named executor waives his right to be the personal representative by not filing within 30 days. The named executor does not automatically lose his role as executor; rather it is within the court's discretion whether or not to appoint a named executor on a case-by-case basis. If the named executor is not appointed as the personal representative, the court will designate another person to administer the estate. Preference is given to those who inherit from the estate. The surviving spouse is giving first preference, if the surviving spouse desires to administer the estate.

How to Petition the Court for Probate

The executor must submit a Petition for Probate, Form DE-111, to the Superior Court. This form asks the court to officially appoint the executor named in the will as executor of the estate. The person named in the will cannot assume his role as executor until appointed by the court. The executor must then fill out and submit the Notice of Petition to Administer Estate, Form DE-131. After the personal representative has been officially appointed by the court, the representative needs to fill out the Duties and Liabilities of Personal Representatives, Form DE-147.

Protect your loved ones. Start My Estate Plan
How to Become the Executor of an Estate Without a Will in Florida



Related articles

New York Estate Law When the Executor Dies

New York, like all other states, recognizes a written will as the proper method for making your wishes known as to the distribution of your assets when you die. The executor is the person named in the will to see that the terms of the will are carried out. If an executor dies before she has completed her duties, the court must appoint a new executor.

Missouri Statute on Guardianship

A legal guardian's relationship to a ward, who can be a minor or a disabled or incapacitated adult, is analogous to a parent's relationship to his child, with similar authority and responsibility. A proposed guardian must petition the probate division of the Missouri Circuit Court for a court order appointing him as guardian.

Who Is Designated to Carry Out the Terms of a Will?

After an individual passes away, it is up to the executor to carry out the terms of the will as written by the testator. Also known as a personal representative, an executor has a number of legal responsibilities that ensure the decedent's wishes are carried out and debts and taxes of the estate are taken care of. Generally, the probate court follows the wishes of the testator. However, in certain circumstances, you may challenge the appointment of an executor.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help. Wills & Trusts

Related articles

When to Notify the Executor of a Will

Called a personal representative in some states, the executor named in a will assumes responsibility for administering ...

How Does the Executor of an Estate Resign in California?

Probate is a court-supervised process that transfers legal title of property from the estate of the deceased, known as ...

Contesting a Will in an Illinois Probate Court

A person who is at least 18 and mentally competent may make a will in Illinois. When the will is filed in court to ...

How Do You Become an Executor of an Estate in Michigan When One Was Not Appointed?

Generally, will makers, or "testators," name an executor in a last will and testament. However, when an individual dies ...

Browse by category
Ready to Begin? GET STARTED