Detailed Answer
To open an estate proceeding in California when no probate case exists, follow these steps. You may use a small estate procedure for modest estates or file a formal probate petition. California Probate Code dictates requirements for each option.
1. Determine Small Estate Affidavit Eligibility
If the decedent’s personal property totals $184,500 or less, and real property value plus encumbrances does not exceed $61,200, you can use the small estate affidavit process (Prob. Code §13100). Steps include:
- Waiting at least 40 days after the decedent’s death.
- Listing all estate assets and paying outstanding debts.
- Serving the affidavit on banks, brokers, or other asset holders.
2. File a Petition for Probate or Letters of Administration
For estates exceeding small estate limits or requiring formal administration, file a petition in the superior court of the decedent’s last residence. Choose one of:
- Petition for probate of will (Prob. Code §8000).
- Petition for letters of administration when there is no will (Prob. Code §8400).
Include a certified copy of the death certificate and the original will (if any). Pay the filing fee or submit a fee waiver request.
3. Serve and Publish Notice
After filing, serve the Notice of Petition to Administer Estate on all heirs and known creditors (Prob. Code §8110). Next, publish a summary notice in a newspaper of general circulation in the county (Prob. Code §8120).
4. Attend the Court Hearing and Obtain Letters
The court typically schedules a hearing 20 to 30 days after petition filing. If approved, you will receive Letters Testamentary (with a will) or Letters of Administration (without a will). These letters authorize you to collect assets, pay debts, and distribute property.
5. Post Probate Bond (If Required)
The court may require a bond to protect estate assets. The bond amount is based on estate value. You can request a waiver if the will exempts bond or all heirs consent.
Disclaimer
This article is for informational purposes only and does not constitute legal advice. Consult a qualified probate attorney in California to address your specific situation.
Helpful Hints
- Collect multiple certified death certificates early to avoid delays.
- Check local court rules; each California county may have unique procedures.
- Use the Judicial Council’s probate forms and guides available online.
- Keep detailed records of asset inventories and creditor notices.
- Consider an initial meeting with the probate clerk for procedural questions.