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 § 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.
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.