Lodging the Decedent’s Will

After a person’s death, you should make a reasonable search for their will or other estate planning documents. Our society allows every person to leave their property exactly how they see fit, subject to some limitations set by public policy and community property laws. The goal of the probate court is to carry out the wishes of the decedent, so the prospective personal representative should always make a diligent search for wills, trusts, or other documents the decedent might have in their possession when they died.

Where should you look? The decedent’s home is the first place to start. Check filing cabinets, safes, bookshelves, desks, and any other places where important documents might be stored. People do funny things with their estate planning documents, like hiding them. You don’t have to dig holes in their backyards for buried repositories, but search in the likely places. If nothing is found in their home, find out if they had a safe deposit box. If so, you may need a court order to gain access to the safe deposit box to see if a will or trust was kept there. Did the decedent have an attorney? The attorney should definitely be contacted to see if he or she drafted any estate planning documents for the decedent, and whether they are storing those documents at their office.

Wills are public documents, so if you find a will, it must be lodged with the court. It will have to be lodged in the court located in the county in which the decedent was residing at the time of their death. Did you find more than one will? You have to lodge them all! It’s not up to you to decide which will is valid, and which is not. You don’t have to offer a will for probate, but if the will is in your possession, it must be lodged with the court. Some people execute half a dozen wills during their lifetime, or even in the last few years of their life! They are all public, and all must be lodged.

The will must be lodged within 30 days of the death of the decedent. Cal. Prob. Code § 8200(a)(1). It can also be mailed to the court by registered or certified mail. A copy of the will must also be mailed to the person named as executor in the will. Cal. Prob. Code § 8200(a)(2). There is a $50 fee to lodge a copy of the will. Cal. Govt. Code § 70626.

As a will custodian, don’t delay in meeting your responsibilities. If someone suffers damages caused by your failure to lodge the will, you could be personally liable for their damages. Cal. Prob. Code § 8200(c). If you have questions about your legal options regarding wills or trusts, contact us.

Publication Requirements for California Probates

The publication requirement for notices of hearing for petitions for probate presents several questions for the probate attorney; in particular, issues of timing, location, and the Judicial Council Form DE-121: Notice of Petition to Administer Estate.

The use of the DE-121 (the “Notice”) is mandatory. It must accompany the petition for probate in California. The Notice is the official public announcement that a petition for probate is being filed for a particular decedent. The Notice provides the court location, the date and time of the hearing, and the name of the proposed personal representative, as well as contact information for the law firm representing the proposed personal representative.

The Notice gets mailed to all those persons entitled to service of the petition for probate, but it also must be published in a newspaper, to generally inform the public and other interested parties (and creditors) who might not receive the mailed notice. The rules for publication are found at California Probate Code § 8121.

You can’t publish the Notice in just any newspaper. It has to be a newspaper of general circulation in the city where the Decedent lived at the time of his or her death. Usually, California courts in each county will provide a list of acceptable newspapers.

After publication occurs, a Proof of Publication must be filed with the court.

As with all matters relating to probate estates, find a competent probate attorney to assist you with the process. Not doing so can cause unnecessary expense and delay.

The Independent Administration of Estates Act

Once an attorney starts to fill out a Petition for Probate, one of the first questions he or she must answer is whether to ask for authority to administer the estate under the Independent Administration of Estates Act (“IAEA”). IAEA is the shorthand for the act, and any reputable trust and estates attorney will understand what is meant by “IAEA”. Most attorneys have no idea what IAEA means.

The IAEA is a part of the California Probate Code. It can be found at Probate Code §§ 10400 to 10592. It is legislation intended to smooth the job of the executor or administrator. Authority under the IAEA allows the personal representative to take certain actions without obtaining prior court approval. Any time the personal representative has to go to the court for authority to take some action, it costs time and money, and delays distribution.

The attorney will first examine the decedent’s will, if there is one. The will often contains explicit language authorizing the executor to obtain IAEA powers. Sometimes, a will expressly denies the personal representative IAEA powers. If there is no will, or the will is silent on the topic, the attorney can still check the box for IAEA powers, and the court will review the request.

There are two levels of IAEA powers, “limited” and “full”. Full authority gives the personal representative the power to buy, sell, or borrow against real property without court approval. Limited authority does not give authority over real property; a personal representative with only limited powers will have to request court approval before moving forward with a purchase, sale, or mortgage.

Estate beneficiaries might object to the request for IAEA authority if they believe the personal representative will have conflicts of interest or should be watched more closely by the court.

Why would anyone ask for limited authority when they could have full authority? Because that person may have trouble obtaining a sufficient bond. We’ll discuss bond in a later post, but often the personal representative has to obtain a bond to cover the value of the liquid assets of the estate (cash, securities, etc.) With full IAEA powers, the court will consider the value of illiquid ("solid") assets, like real property, in determining the bond. Including the value of the real property can greatly increase the size of the bond required, so sometimes it makes sense to stick with limited IAEA powers and keep the bond value lower.

The California Petition for Probate – A Primer

One of the first documents that must be prepared and filed in any probate in California is the Petition for Probate. The Judicial Council of California has prepared a mandatory form for the Petition for Probate: DE-111.

This petition is the formal request for the court to open a probate for a particular person. This is a complicated petition that even attorneys often fill out wrong. It’s best to retain an experienced trust and probate attorney to take care of these forms for you.

The form requests a great deal of very specific information regarding the decedent: name or names the person went by; date of death; address at time of death; names of close relatives. The form also asks more complicated questions: about the decedent’s estate planning, or lack thereof; about whether a bond is required; and for the basis for priority for nomination of the personal representative. If any part of the petition is not clear, or not complete, the petition may be delayed or dismissed by the court clerks.

The key request of the petition for probate is the request for the court to appoint a particular person as the personal representative of the estate. “Personal Representative” is an umbrella term for the person who represents the estate. If the decedent had a will that nominated the personal representative, that person will be called the “Executor”. If not, then that person will be called the “Administrator”. The powers and responsibilities of the executor and administrator are the same.

Our firm handles probate proceedings all over the Bay Area: San Francisco, Alameda, Marin, San Mateo, and further afield. As Bay Area probate attorneys, we know the ins and outs of the different probate departments and their particular preferences and local forms.

The Probate Process in California – A Summary

The probate process in California can be daunting to those already dealing with the loss of a friend or family member. But with the proper guidance, any intelligent and responsible person can navigate the court system and reach the ultimate goal: the safe and efficient transfer of a decedent’s property to those entitled to it.

The process starts with getting a general sense of the property owned by the decedent. Did he or she have a house or other interest in real property? Bank and investment accounts? Life insurance policies? Usually a quick search of their financial records will turn up the evidence needed.

The quick search may also turn up a copy of the decedent’s Last Will or Revocable Trust. If they have a trust, their property might not pass through probate; otherwise, a court process is likely necessary.

With some sense of the decedent’s property and their prior estate planning, you’re ready to contact a reputable “estate” or “probate” attorney. Avoid attorneys without a clear focus in this area of law. A generalist is not the best choice here.

Your attorney will help you determine the best options to proceed with the property transfer process. Does an executor or administrator need to be appointed? What county will the probate proceeding take place in? Who has to be notified? All of these questions need to be answered before the next steps can be taken.