So you have been named by a loved one as their personal representative in case of their death. You might be wondering what that means for you after your loved one passes. Are you expected to act immediately? What should you do first?
It is important to recognize that a nomination by a decedent to be their personal representative does not automatically confer authority upon you. Being named in a will only makes you a nominee – court action is still needed to formalize your authority as personal representative of the estate.
Filing the Petition for Probate
The first step to commence the probate process is for any interested person to file a petition for probate (Form DE-111).
This person could be any interested person – yourself as the nominated personal representative, any heir, beneficiary, or devisee, persons representing any of the heirs, beneficiaries or devisees, or even creditors.
The petition for probate is a formal request made to the court for the initiation of the administration of the estate of a decedent. Typically, a petition makes the following requests:
- If the decedent left a will, to admit the will to probate
- The appointment of a personal representative; either someone named in the will or some other person to be appointed by the court, and the issuance of the letters of authority for the personal representative
Once the letters are issued, the petitioner may also request that the personal representative be given authority under the Independent Administration of Estates Act (IAEA), and for the waiver of, or fixing the amount for, the probate bond.
Establishing jurisdictional facts in the petition
A probate court, like any other court, must have jurisdiction over the subject matter and the persons bringing the petition before it can act. So the petition for probate must establish all the required jurisdictional facts for the court to take jurisdiction. These include:
- The fact of the death of the decedent;
- That the decedent was domiciled in California, or that the decedent owned property located within the state; and
- That you have complied with the notice and publication requirements:
- That you have mailed formal notices of the hearing to every person named in the petition, and
- That notice of the hearing was published in a newspaper of general circulation in the city where the decedent resided or owned property
All three facts must be established to the satisfaction of the court before the probate court can act on the petition.
The Order for Probate
If all requirements are met, the court will issue an order for probate (Form DE-140). If there is a will, it is considered formally admitted by the court. It names the personal representative and sets the amount of the probate bond.
It must be remembered, however, that the personal representative cannot yet act for the estate on the strength of the order for probate. After a few preliminary requirements – which may include an affirmation by the personal representative to perform his duties in accordance with the law, and the satisfaction of the required probate bond, then the court may issue the letters of authority (Form DE-150). Only then will the appointment of the personal representative be deemed effective.
In some exceptional cases, the court may allow the personal representative to act before letters of authority have issued. This can happen when there is an urgent matter that needs to be taken care of immediately – for instance, a risk of foreclosure or a failing business. The personal representative, sans the letters, can petition to act as a special administrator, with temporary powers to act for the estate, for the limited purpose of addressing the urgent matter.
Aside from this limited authority to act, the petition for probate will continue as usual, and may or may not end with the letters of authority being issued by the court.
If you are an interested party petitioning the court for probate, it is good practice to consult with a probate attorney to ensure that your filings meet all requirements. Contact us today for a free professional consultation.