Huntington Beach, California Attorney, Mark W. Bidwell

The procedures are established by California code under the section titled “Probate.” Probate begins with filing a petition for a date in court. The petition is filed in the county where the decedent died. Southern California counties are; Ventura, Los Angeles, Orange, San Diego, Riverside and San Bernardino.

The petition nominates an individual to administer the estate. If that individual is nominated as executor in the Will, the petition is called “Probate of Will and for Letters Testamentary.” If the individual is not named in the Will, the petition is called “Probate of Will and for Letters of Administration with Will Annexed.” “Letters” are the written court appointment of the individual to administer the estate.

The Will is documentary evidence of the Testator’s intent. Because, the Will is evidence, the original Will is “lodged” with the court. The court admits the Will as evidence if it is an original signed by the decedent and two witnesses. If the Will is not the original or not properly witnessed, proponents of the Will must by ‘clear and convincing evidence’ prove to the court that at the time the testator signed the Will, it was his or her intent to have the Will a valid testamentary document. ‘Clear and convincing’ is a subjective standard that will vary from judge to judge.

Prior to issuing letters, many probate courts require the personal representative to post bond for his or her performance. A bond is not cheap and is in effect a credit application. A personal representative with a poor credit record may be able to obtain a bond. If the Will waives bond or if all beneficiaries waive bond, the courts will generally honor the waiver.

If the decedent owned real property the petition should request authorization to Administer under the Independent Administration of Estates Act. This authority allows for the sale of real property without a court hearing and without a court auction.

The probate court is required to have a hearing within 45 days of the date the petition is filed. Fifteen days prior to the hearing, all heirs of the decedent and all beneficiaries of the Will must be provided written notice of the hearing and a copy of petition. Notice of the court hearing must be published in an ‘adjudicated,’ local newspaper three times over a 15-day period prior to the hearing date.