California doesn’t require that every will be filed with the court. It’s a community property state. If the decedent was married and owned no separate property, such as premarital or inherited assets, probate isn’t necessary. An abbreviated probate process is available if the decedent’s estate is worth less than $100,000. All probate processes begin with filing the will with the court.
Access Form DE-111, a petition to open probate, from the state’s judicial website. Fill in the petition, explaining who died, the extent of the assets he left and naming his heirs. His heirs are not necessarily those named to inherit property in the will. They're his immediate relatives who would inherit from him under state law had the decedent not left a will. Often, the decedent's beneficiaries will also be his heirs.
Read More: What Happens With Probate After a Homeowner Dies Without a Will?
Take the completed petition and the decedent’s original will to the superior court clerk in the county where the decedent lived at the time of his death. You must do this within a month of the date of death. File the petition and will with the clerk. The clerk will give you a date and time for a hearing at which a judge will either accept or reject the will for probate. The hearing is usually within about 45 days.
Access Form DE-121 from California’s judicial website. This is a notice to the decedent’s heirs, beneficiaries, executor and known creditors, advising them that you’ve submitted the decedent’s will to the court. Complete the form and make a copy for each person you’re putting on notice. Attach a copy of the petition for probate to each notice.
Arrange to have someone mail the notices to each beneficiary, heir, known creditor and the will's executor. You can do this if the decedent did not name you as executor, and if you're not his heir or beneficiary. Otherwise, a disinterested third party must do it, that is, someone not related to the decedent, not mentioned in the will and to whom the decedent did not owe money.
Ask the person who will mail the notices to complete and sign the second page of the original notice in the space titled “Proof of Service by Mail.” After mailing the notices, file the original with the same court clerk who accepted your petition and the will.
Attend the hearing. Between the time you filed the petition and the time of the hearing, a probate examiner will have reviewed the will and your petition. The judge will either accept the will or reject it, based on the examiner’s report regarding its validity and the completeness of your petition. If the examiner recommends that the judge accept the will, and if none of the heirs, beneficiaries or creditors object to it, the judge will officially open probate.
If the examiner recommends that the judge should reject the will because it does not meet the terms of California’s laws, you can argue that decision at the hearing.
- Law Office of Stephen C. Gruber: Frequently Asked Questions About Probate in California
- Superior Court of California, County of Alameda: Probate Court
- Superior Court of California, County of Sacramento: Decedents’ Estates
- J. D. Fullman: Understanding Probate – A Basic Guide to the Probate Process (PDF)
- California Judicial Branch: Document DE-111 (PDF)
- California Judicial Branch: Document DE-121 (PDF)
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.