Video Transcript
The following is an unedited, verbatim transcript of our video. It is not intended to be a stand-alone article.
Hi, this is Keith Davidson of Albertson & Davidson. In this video, I’m going to show you how to fill out the Petition for Probate. This is form DE-111. A number of years ago, I actually did a video explaining how to fill out a petition for probate. But since that time, the form has actually changed quite a bit. They’ve made a lot of updates to the form and they changed around the information that you have to include on the form. In this video, we’ll walk through the current form as it currently exists, and we’ll see how to properly fill out a petition for probate.
If you’re going to open a probate estate for somebody, either because they died with a will and you need to transfer some property under the will, or they died without a will and you need to do an intestate estate, this is the form that you’ll going to need to start the process.
As with all of our forms in our form vault series, I always start just by going to Google. That’s what I did here. You just search for judicial council forms. You can go to the California’s court website, and you’re going to click on probate forms, Decedents Estates. I happen to know that we need DE-111. It’ the first form up on the page here. If I didn’t know that, I could do a search here by name or by form number.
Page 1
I’ve brought up the form right here. Now this form looks like it’ll be very easy. It’s a pre-printed form. There are just a few boxes you have to check, and you can file it in the court and your off to the races. The problem is that the form is more complicated than it appears. If you check the wrong box or if you fail to check a box the you’re supposed to check, you’re going to have a lot of problems. Your petition is going to be rejected by the court and you’re going to have to go back and start from square one. So, it really pays to take a little bit of time to really understand what you’re doing here and do it properly.
We start off at the top by putting in your name. I’m just going to put my name in here. If I were representing myself in this lawsuit, then you just put your own name. Since I’m a lawyer, I’m going to put my law firm information there as well. Of course, I have a state bar number that goes there. If you don’t have a state bar number, then you can just leave that area blank. And then we’re going to put in the address that we’re going to use for purposes of the court. We have five offices in California. I’m going to use the Carlsbad address where I spend a lot of my time.
You want to make sure you have your phone number in here because the court may need to contact you at some point throughout the process. And whatever information you put up here when you file at the court, that’s the information that the court going to use from now on to try to contact you if they need to contact you. That’s why you also want to make sure you have your email in here, so the court can contact you if need be. Then you’re going to put Attorney for, If I’m doing this on my own, I’m just representing myself, you can type Pro Per in here or you can just type your own name in here. In that way, the court knows that you’re representing yourself.
Since I’m an attorney, I’m going to say that I’m representing Bob Smith in this probate estate. And we’re going to have to list next the county that we’re filling this. Let’s say it’s Los Angeles County, and the street address is 111 N. Hill St. That is the physical court address that you put in there. And under mailing address, you need to put in the court’s mailing address. In this case, they are the same but that may not always be the case. And then you in the city and the zip code. I don’t remember the zip code of Los Angeles, but you can look it up. And then you put in the branch name for the court. If you don’t know the branch name, you can go to the court’s website and look it up. And if you can’t find it there, you can leave the branch name blank when you file it.
Petition For
This is going to be the Estate Of. We’ll put in Bob’s wife, Rachel Smith. That is what this estate is for. Now, right off the bat, this section here where it says “petition for” is going to be a very confusing section if you don’t understand these terms. You really have to pay attention here. The form wants to know are you filing a petition for probate of a will and for Letters Testamentary. Are you doing a probate of a will and for Letters Administration with Will Annexed? Are you looking for Letters Administration, Letters of Special Administration with general powers, Authorization to Administer under the Independent Administration of Estates Act? Do you have a lost will? There’s a lot going on here.
Do you have a will?
The first question is—Do you have a will? If so, then you’re probably going to be checking one of these two boxes. Let’s check that one with Probate of the Will. Is the original will lost? I hope not. That causes problem if you lost the original will. The original will has to be lodged with the court. If you lost the original Will, the law presumes that the will was lost with the intent to revoke it. If the original will isn’t around when Rachel Smith passes away, the law presumes that will was revoked. You can overcome that presumption, but you have to show facts to overcome it. And that’s why the form wants to know do you have a lost will or do you not?
Letters Testamentary vs Letters of Administration
Then, this form is asking are you going to petition for probate of a will and for letters testamentary. The only difference between Letters Testamentary and Letters of Administration with Will Annexed is whether or not the person who you want to act as the personal representative is named in the will.
If the person is named in the will, they’re the executor. As the executor, you’re asking for letters testamentary, so you just check this first box. If the person who you want to act as the personal representative is not named in the will but there is a will, then you’ll check the second box. Then what you’re asking for is you want to admit a will to probate and you want what we call Letters of Administration with Will Annexed. This is just a very confusing way of saying that the person who is going to act over this estate isn’t named in the will.
If you don’t have a will and it’s an intestate estate, then you’re going to go with Letters of Administration. You’re not asking that the court admit a will to probate because there is no will. You just need letters of administration for somebody to manage the estate.
Letters of Special Administration
Letters of Special Administration is for emergencies. If you need somebody appointed on an emergency basis in order to handle some assets in the estate that’s in danger of being lost, then you would do that, in which case you would not click the Letters of Administration. But we’re going to say we’re doing a Will and for Letters Testamentary because we’re going to say Bob Smith is named in that will to act as executor. Down here, the Authorization to Administer the estate under the Independent Administrator’s Estate Act, we’re going to talk more about that later but we do want to click that. You almost always want to ask for that if you can get it. The case number, hearing date and time, department, we’re going to leave blank because the court’s going to fill that in for us when we file this with the court, so we don’t have to know that.
Publication
Publication—You’re going to have to publish notice of your probate in the newspaper. Otherwise, it cannot be granted. It can’t even be heard. You have to tell the court where you are going to publish it. You put whatever newspaper you’re going to use right there, and either you tell the court I’ve already requested publication or it’s going to be arranged. I’ll get around into doing this after I file the petition, which is normally what we do.
Petitioner
We start here with the petitioner. Who is bringing this? Again, that was Bob Smith. He is the petitioner. He is the one filing this and asking that the court take whatever action is included in this petition. He’s requesting that decedent’s will and codicils, if any, be admitted to probate, and whoever the named executor is.
We’re going to say that Bob Smith is the named executor. We’ll type his name in there and he’s going to be the executor. Now you see that there’s again these different terms once again down here. There’s executor. There’s administrator with will annexed and there’s administrator. An executor is somebody who is named in the will to act. Bob Smith is named in the will so he’s an executor. If there’s a will but Bob Smith is not named in that will, somebody else is, but whoever that is they doesn’t want to act. Bob’s going to do it instead, that would be an Administrator with Will Annexed. That’s just a complicated way to say that Bob Smith isn’t named in a will, but he’s going to act over the will in any event. And then an administrator just means that there is no will. If there’s no will, it’s just an intestate estate. You’re going to be an administrator. Here, we have an executor. Special administrator again is for emergency powers, but we’re not going to do that.
Here, we get back to the Independent Administration of Estates Act. There’s a lot going on with this Act. If you really want to look it up, go to Probate Code Section 10400, and start looking through there. There are all sorts of powers that an executor can have, can be granted, where they can do certain things without approval, such as selling a property, compromising on debts and all that sort of thing. We almost always want to ask for full power so we can do as much as possible outside of court if we can. There are still things that an executor can’t do outside of court. They can’t pay themselves. They can’t pay their lawyer. They can’t close the estate and distribute the assets to the beneficiaries by themselves. All of that still requires court approval even if you have full powers, but we’re going to ask for full powers.
Bond
Next is a bond. A bond is kind of like an insurance policy that insures that the executor doesn’t steal any money from the estate. If the executor does steal money from the estate, then the beneficiaries can be paid back that money from the bonding company. For that reason, you almost always want your executor to have a bond cause it’s just safe. It is safer for the beneficiaries.
A lot of wills will waive bond because they don’t want the estate to have to pay for the cost of that bond. Quite frankly, most bonds are not that expensive, especially considering the protection the you receive for them. But if your will waives bond, then you would check there. There are a few other times when a bond is going to be waived and we’ll talk about that when we get to 3-e. If you’re not going to waive bond, then you’re going to click here and you’re going to say this is what I want bond to be fixed at and the bond will be furnished by and admitted surety insurer or as otherwise provided by law. There are insurance companies that are licensed to be able to provide these bonds. And you’re going to put the amount of the bond. The amount of the bond is based on the amount of the estate that is liquid. If there’s a hundred thousand dollars of cash here, you’re going to have a bond of at least a hundred thousand, and a lot of times you’ll end up with a bond a little higher, 20% higher— $120,000, something like that. So whatever bond you want, you’d specify that. You can also ask that the estate accounts be put in a blocked account. That’s a little more difficult. Blocked accounts are very hard to deal with, but in certain cases, that might be appropriate. We’re going to say that the will waives bond, but this is where you’d fill in the bond.
Here, you would put in when the decedent died. The court need to know when the person passed away, so we’ll say October 1, 2018, and they’ll need to know the place where they passed away because that’s going to be important as to where the proper place to bring your petition. The decedent has to have been a resident in the county named above in order for you to bring your petition.
If I’m going to file this petition in Los Angeles County, then that has to be the county where the decedent resided at the time of their death. If it isn’t, then you shouldn’t be filling this in Los Angeles. If they resided in San Mateo County, then that is where you should file this, not in Los Angeles. The other alternative is, if you have somebody reside outside of California but they left some real property in the State of California, then you will file this in the county where the property is located. But most of the time, you’re going to be under 3.a.1, a resident of the county. Then right here, decedent was a resident of a country other than the United States. If that’s the case, then you would click this, and then you would fill in the state or country where they are a citizen. The court, under c, wants to know the address of the decedent at the time of death, and so this is where you would fill in whatever their address was so that the court can see that they are in fact a resident of that county where you’re filling this petition.
Page 2
Moving on to the second page, we now are going to fill in some very basic information about the value of the property. A lot of times, people get a little concerned about filling in this because they think, well, I don’t really know what the property is worth, I don’t know how much the property will appraise for. This doesn’t have to be exact. You’re going to do an inventory and appraisal once the estate is open. This is just to kind of get the ball rolling, to get everybody an idea how much property there might be in this estate, especially the creditors. A lot of creditors want to know, can I collect from this estate? You’ll just fill in the appropriate information, for real property for example, you can go to Zillow, get some values, and just fill it in as best as you can and then you’ll total it down here at the bottom.
3.e
Now we get back to 3.e. Remember when we had that question about whether or not a bond was going to be waived. Under 3.e, the court wants to know why bond is waived, so it could be that the will waives the bond. The will might say you don’t have to get a bond. It could be that you are a special administrator, and under the will, it waives the bond. Or under 2, it could be the that all beneficiaries are adults and they have waived the bond in writing. You have to actually get separate waivers from every single beneficiary in order to qualify for this. If I were a beneficiary of an estate, I would not sign one of these. But, that’s up to you. Everybody is different. You should look into that. Or all heirs at law are adults and have waived bonds. It’s the same thing. It’s just that heirs are people who are receiving without a will, it’s the same as 2 except in cases where there’s no will. In number 4, if the sole personal representative is a corporate fiduciary or an exempt government agency. if the county is going to be the one who acts as an executor, they don’t need a bond. By law, they don’t need to do that.
Section F
Now we’re going to go on to f, so you’re going to say either the decedent died intestate, which means the decedent didn’t have a will. Or you’re going to say here’s a copy of the decedent’s will dated on whatever date that the will was dated. Let’s say that the will is from January 1, 2005. That’s when it was created. If you have an amendment to the will which we call codicil, click right here, and that way you’ll have exactly what you need, and you’ll attach a copy. The wills and codicils will be attached to this petition. The court also wants to know if the wills and all codicils are self-proving. You can go to Probate Code 8220, and you’ll see what that means. They’re some language that a will has to have at the end in order for it to be a self-proving will. If it is a self-proving will, it makes your job a lot easier because you don’t have to hunt down those witnesses when you file this petition. You just file the will and you’re good to go. If it’s not a self-proving will, then you’ll going to find the witnesses and have them sign form, and that can be a real pain cause sometimes it’s hard to find these witnesses many years later. Most wills are self-proving, and you would check that box.
And then 3 is if you lost the original will. If you have the original will, that should be lodge with the court. In this natural form, you just take it down to the courthouse and they keep it forever and ever. If you’ve lost it or it can’t be found at the time of the decedent’s death, then you’ve got a problem because there’s a presumption that the will was lost with the intent to revoke it, and you don’t want that. You can overcome that presumption but it’s not particularly easy, so you want to try and get rid of that. Hopefully you don’t have a lost will, but if you do, you need to check this box and you need to put an attachment explaining what happened to the will and why the lost will presumption should not apply to you.
Section G
Next, we’re going to get to the appointment of personal representative. This is where the proposed executor’s named as executor of the will. If that’s the case, you just go ahead and click that. It could be that there’s no executor named in the will. That’s why somebody needs to be an administrator with will annexed. It could be that somebody is a nominee. The court wants to know under D why are the other named executors is not acting. So maybe one of the named executors has passed away, or they declined to act for some reason. They just don’t want to do it. The court wants to know that right here. If you’re an administrator, then you check one of these boxes, so this is where you have an estate without a will, and this is where the petitioner is a person entitled to letters for some reason. And there’s actually a list of priority under the probate codes. The spouse has first priority, and then the children, and so on and so forth. So, whoever is going to be acting as the administrator for an estate that doesn’t have a will, you mark the box that shows why you have the right to be appointed. It’s probably going to be A most likely.
Section H
Okay, now under H, the court wants to know something about this personal representative, the executor or administrator who is going to be acting. First of all, are they resident of California? The court prefers California residents. If they’re non-residents, then they want to know what address, where’s this person’s address at. Every now and then, the court will appoint a non-resident of California, but most courts prefer they reside at the state if they’re going to act as an executor. And they definitely want them to reside in the United States if they’re going to act as an executor.
Going down to next page, number 4 asks, you have to specify that the will does not preclude administration of the estate under the Independent Administration of Estates Act. Some wills do say that you can’t use that. Most of them don’t but the court wants you to say whether it does or not.
Number 5 is very important. This is going to be everybody who has survived the decedent and you are going to have to specify everyone. For example, was there a spouse? You have to click that. If there was no spouse, the court wants to know if it was because they were divorced or were never married, or the spouse was deceased. What’s the situation there? In California, we have registered domestic partnerships. You have to say that, or no registered domestic partner. And then you have to say whether there were children. If there’s a child, are they natural or adopted, natural adopted by a third party, no child. You really have to stop and think about each of these questions when you answer them. If they have one or more children, you can just click that box. You don’t have to click any of these others. But if you have no child but issue of a predeceased child which will be grandchildren, then you would click down here in number 7. You have to go through each one of these and think about which one applies. And B wants to talk about whether the decedent was survived by a stepchild or a foster child, because there are times when those people who are stepchildren or foster children might be able to receive a portion of the estate, especially in an intestate estate, depending on the circumstances, so the court wants to know that.
Under number 6, this one gets really tricky. You really have to read through 6 carefully. You complete number 6 if the decedent was survived either by a spouse or registered domestic partner but no issue, or, no spouse, no registered domestic partner, or issue. That’s the only time you’re going to fill out number 6. If you have somebody who has a spouse and issue, then you don’t need to do number 6. It’s only if you have a spouse and no issue. It’s a very confusing section, so make sure you understand what they’re asking you. And the first one is going to say decedent was survived by a parent or parents who are listed in item 8. Essentially the reason why the court wants to know number 6 is because there’s time when somebody other than the spouse is going to be entitled to some of the estate if it passes intestate. There’s time when these people listed under A through G of 6 might be entitled to something from the estate because there is no spouse and there is no issue. The court want to know this information. But be careful because if you have a spouse and issue, meaning children of the decedent, you can just skip number 6 altogether, just forget it.
Number 7 is you complete only if there is no spouse or issue survived the decedent. So again, the court needs to know what this information is but only if there’s no spouse or issue. And that’s the only time you’re going to fill out number 7, otherwise you can skip forward to number 8.
Number 8 is where you’re going to list everybody that you can think of that needs to get notice of this estate. That includes all of the heirs at law and all of the named beneficiaries under the will. Let’s say that the will leaves everything to a charity, but the decedent have 5 children. You have to name all five kids in here and the charity, because the kids are heirs at law. They may not be getting anything from the estate but they are legal heirs of the decedent who at least needs to get notice of what’s going on. All of those have to be listed in here. The form actually tells you, just include everybody that you stated in items number 2, 5, 6, and 7. So 7 is here, 6 is here, 5 we filled that out, and you can even go up all the way to 2 which is the people who are going to be named as the executor. Just go back through the form for every box that you checked to make sure that everybody who meets the description of that goes here. It’s going to be the spouse, the children, probably parents if there are no children, and the named beneficiaries under the will.They’re all going to go here. If you don’t have enough room, you can just click that box and continue on the attachment, and then you’re going to tell the court have many pages you have attached.
At the very end here, you’ll finally going to get to the point where you can put in the name of the attorney, the name of the petitioner, and you can print it out and sign it. So, I would put my name here, I would put my client Bob Smith here, and we both would sign this form. You also can print this form and save it, so you can use it again or change it around if you have to. Now keep in mind that this form DE-111 is just the first step, the first form that you need in order to file to open a probate. There’s other forms that you need to file along with this one, and that will be the subject of our next form vault video. But for this video, this is the petition for probate form DE-111, and now you know a little something on how to fill out that form.
