Preparing The Petition For Probate

A person who has priority for appointment but does not wish to serve may decline and nominate another person as personal representative.

There is no special or printed form to nominate or decline to serve. You must prepare an attachment for each person as a part of the Petition for Probate. A person named as executor may also decline to serve as executor and nominate another person, but an executor does not have the right to name a successor executor or co-executor.

• Petition for Probate (Form DE-111, Judicial Council), and all attachments,
• Original Will (if there is one)
• Notice of Petition to Administer Estate (Form DE-121, Judicial Council)
• Duties and Liabilities of Personal Representative (Form DE-147, Judicial Council)
• Order for Probate (Form DE-140, Judicial Council)
• Letters (Form DE-150, Judicial Council) You may also need to file the following forms if you need to prove a Will:
• Proof of Holographic Instrument (Form DE-135, Judicial Council)
• Proof of Subscribing Witness (Form DE-131, Judicial Council)

Step 2
Give proper notice by mail to all interested persons.

Step 3
Arrange for publication in the proper newspaper. (List of local newspapers)

Step 4
File the Proof of Service by Mail (see section on "Who should get notice") and Proof of Publication (see section on "How do I publish") with the court.

Step 5
File your Bond, if required.

Step 6
Appear before the court at the scheduled hearing date. After the hearing, file the signed Order for Probate and Letters in the Clerk's Office and get certified copies, if desired.

• Petition for Probate:
  Each question must be answered and each section must be fully completed. If a question or section refers to an Attachment, that information must be included on a separate sheet of paper (or document, if required) and attached to the Petition. Failure to complete all sections of the Petition for Probate, including attachments, may cause the hearing date to be continued until written supplements are filed to provide the missing information. The number of attachments required for your Petition will depend on the particular circumstances involved in each decedent's estate. Section 8 of form DE-111 must be filled out. An attachment page is required if there isn't enough space on form DE-111 to list all persons who may have an interest in the estate. See Local Probate Rule 4 C for additional information concerning persons and information to be listed on Attachment 8. Also see notice and wills (if the decedent left a Will) located below in this section. If you are uncertain about the meaning of any of the words in the Petition, check the Glossary section of this website to see if that word is defined or explained.
• Notice of Petition to Administer Estate:
  This form is used for two purposes: 1) for newspaper publication, and 2) to notify the persons who are entitled to receive notice about the hearing date. Complete the front side of the form and file it with the Petition for Probate. You will need the original and at least one copy. The Filing Clerk will keep the original and return the copy (or copies) to you. Do not just put the copy in your file. You will need to use this form to give notice to interested persons and for publication.
• Duties and liabilities of personal representative:
  This form summarizes in general form the duties and obligations of the personal representative. Each person to be appointed must sign the reverse side of the form.
• Order for probate:
  The original and at least one copy of this form should be submitted to the court along with the other forms. You will not get any copies back until after the hearing, if the judge grants the Petition for Probate and appoints you as personal representative.
• Letters:
  This form serves as the oath of office for the personal representative and may be given to anyone who needs proof that you have been appointed as the personal representative and have authority to act on behalf of the estate. Each person to be appointed must sign the form. (If more than one person is to be appointed, both or all of them must sign the same form.) This form should be given to the Filing Clerk along with all of the other forms, but the clerk will not file the Letters or return any copies to you at the time of filing. The form will be placed in the judge's file for the Probate Examiner to review prior to the hearing. If you are appointed, the Letters will be filed and issued by the Filing Clerk. You can get as many copies as you need at that time or at any later time. Institutions such as banks or title companies generally require certified copies, for which there is an additional fee. Some institutions, such as stock transfer agents, also require that the Letters be submitted within 60 days of the date when they are certified by the Filing Clerk. You can go the the Court’s Records Office and purchase additional copies certified at a later date when needed.
• Proof of holographic instrument:
  This form is required if the decedent left a holographic (handwritten) Will. A copy of the Will must be attached as Attachment 4.
• Proof of subscribing witness:
  This form is required if the decedent left an attested Will (or codicil) that is not self-proving (this usually occurs on wills executed before 1985). You must locate one of the witnesses to the Will (or codicil) who can sign the form to prove the authenticity of the Will. A copy of the Will must be attached as Attachment 1.

• Attested Wills (also known as Witnessed Wills):
  Attested Wills are usually prepared by an attorney, in typewritten form, and are signed in front of two (or three) disinterested witnesses who are not receiving any gifts under the Will. An attested Will is self-proving if the attestation clause signed by the witnesses contains a statement that the witnesses are signing under penalty of perjury. A self-proving Will can be admitted to probate without the testimony of any of the subscribing witnesses. A pour-over Will is an attested Will (and may also be self-proving) that is prepared in connection with a revocable trust and gives all of the decedent's property that is subject to probate to the trustee of the revocable trust.
  
• Holographic Wills:
  Holographic Wills are handwritten wills prepared by a testator in his or her own handwriting. Holographic wills do not have to be signed in front of witnesses or notarized. A holographic Will may be admitted to probate if the testator's handwriting can be proved by the testimony of at least one witness who was personally acquainted with the testator and has personal knowledge of the testator's handwriting.
  
• Statutory Wills:
  Statutory Wills are fill-in-the-blank, pre-printed wills whose form and content is specifically prescribed under California law. A statutory Will is a form of attested Will that must be signed in front of (at least) two witnesses. It is self-proving because the required declaration under penalty of perjury is included in the printed form. However, the testator must use great care to follow carefully the instructions for choosing an executor and deciding how property is to be distributed in order to complete the Will properly.

• Persons entitled to notice:
  All persons or entities (such as churches or other charities) named in the Will, including each person or corporation nominated as executor, and all persons who would be entitled to inherit as heirs by intestate succession (even if the decedent left a Will) are entitled to receive notice of the Petition for Probate. See Local Probate Rule 2 D for additional information that must be provided to the court if a person's address is unknown so that notice cannot be given. In that situation, you must make a reasonable effort to locate the missing person and file a declaration or affidavit to tell the court what steps you have taken.
  If a citizen of a foreign country dies without leaving a Will or leaves a Will that does not name an executor, or if it appears from the Will that property will pass to a citizen of a foreign country, then notice must also be given to a recognized diplomatic or consular official of the foreign country, if that official maintains an office in the United States.
• Notice requirements:
  Notice must be given by first class mail or by personally delivering a copy to each person or entity at least 15 days prior to the hearing. Each person should receive a copy of the "Notice of Petition to Administer Estate" showing the hearing date information. It is also recommended (but not required) that each person be sent a copy of the Petition for Probate with all attachments.
  Note: If you are the person who is asking to be appointed as personal representative, you cannot mail the copies but must have someone else who is not a party mail the documents for you. After the copies have been mailed or delivered, have the person who mailed the documents complete the Proof of Service by Mail on the reverse side of the Notice of Petition to Administer Estate and sign the Proof of Service by Mail. Check to make sure that all of the persons and entitles listed on Attachment 8 of the Petition for Probate have been given notice. If additional space is needed, attach a separate page. File the signed Proof of Service by Mail with the court.

• Time and manner of publication:
  A copy of the Notice of Petition to Administer Estate must be published three times in the legal notice section of a newspaper of general circulation in the city where the decedent resided, with at least five days between the first and last publication (not counting the publication dates). The first publication date must be at least 15 days prior to the hearing.
  
• Proper newspaper:
  It is very important to publish the Notice of Petition to Administer Estate in the proper newspaper since the cost of publication is expensive and may be several hundred dollars. If the city where the decedent resided publishes a qualified newspaper, that newspaper must be used, even if other newspapers are also sold or distributed within the city (such as the San Jose Mercury News) and the decedent never read the designated newspaper. See Attachment PB-4000 of the Local Probate Rules of Court for a list of approved newspapers for Santa Clara County with phone numbers, publishing deadlines and estimated fees. Most newspapers will require payment in advance. You must contact the newspaper and provide them with a copy of the Notice of Petition to Administer Estate. Pay close attention to the publishing schedule and deadlines so that the publication can be completed within the time required by law, especially if the newspaper is published only once a week! Make sure the front side of the Notice has been completely filled out. Missing or incorrect information could result in defective publication and extra cost to have the Notice re-published. After publication has been completed, an Affidavit of Publication must be filed with the court. Ask the newspaper whether it will file the Affidavit directly with the court or send it to you. Remember, it is your responsibility to make sure that the Affidavit is filed, even if the newspaper says they will do it for you.

More Help with Property Probate

• About Probate
• Administering the Estate
• Closing and Distributing the Estate
• Process Diagram
• Referees
• Simplified Procedures
• Trusts
• Probate Resources