Petition for Probate
Transferring Assets Worth More than $166,250
Whenever all the property owned by the decedent is worth more than $166,250, a Petition for Probate (Form DE-111) can be filed with the probate court under Probate Code §8000, et seq. The petition allows for a will to be admitted to probate, otherwise, the estate will pass to the heirs under the laws of intestacy. The petitioner is the personal representative (either an executor or administrator) who signs the petition. This probate procedure usually takes eight to twelve months, but can take longer if there are complications.
The first step is to file the necessary documents with the probate court in either the county where the decedent lived or where the real estate is located:
- Petition for Probate or for Letters of Administration (Form DE-111)
- The original will, if any, or a copy if the original cannot be found
- A certified copy of the death certificate
- Duties and Liability of Personal Representative (Form DE-147)
- Confidential Statement of Birth Date and Driver’s License Number (Form DE-147S)
- Local form Certificate of Assignment
- Order for Probate (Form DE-140)
- Letters Testamentary or of Administration (Form DE-150)
When filed with the court, the court clerk will set a date for a court hearing. The petitioner mails Notice of Petition to Administer Estate (Form DE-121) regarding the hearing to all the beneficiaries of the estate and anyone named in the will, if any. The court may require the petitioner to post a bond. At the hearing, anyone can come and consent or make objections. Usually, the court approves the petition at the hearing and signs the probate court Order for Probate (Form DE-140) and issues Letters Testamentary or of Administration (Form DE-150) appointing the personal representative as the executor or administrator of the estate.
After the hearing, the personal representative mails out multiple notices:
- As required by Revenue & Taxation Code § 480(b), the executor or administrator files a Change of Ownership Statement – Death of Real Property Owner (Form BOE 502-D) with the county assessor in the county in which the decedent owned real estate for each parcel of real estate.
- The probate referee appraises the property with the required Inventory and Appraisal form (Form DE-160, and Form DE-161).
- As required by Probate Code §§215, 9202(a) and 19202, notice to the Department of Health Care Services (Medi-Cal) is sent.
- As required by Probate Code §§ 9050 and 9052, notice is given to all known creditors by Notice of Administration of Estate (Form DE-157).
- As required by Probate Code §9202(c), notice of the decedent’s probate estate is sent to the California Franchise Tax Board.
- As may be required by Probate Code §§ 216 and 9202, notice is given to the California Victim Compensation Board for any heirs that are currently or have been incarcerated.
- As may be required by Probate Code §9200-9201, 19201, and Government Code §811.1, notice is given to the Employment Development Department and the State Board of Equalization.
The petitioner marshals the assets of the estate and sells any assets if needed. The petitioner pays any creditors of the estate or rejects any creditor claims that are not valid.
Once all the assets have been collected and the creditors have been paid, the estate may be ready to be closed and the remaining assets distributed to the heirs of the estate. The petitioner would file a First and Final Report and Petition for Final Distribution and the court would set a hearing. Notice of the hearing would be sent to the beneficiaries. Generally, at the hearing the court would approve the petition and order the assets distributed to the heirs.
To transfer any real estate, the probate court order must be recorded with the county recorder in the county where the real estate is located, along with a preliminary change of ownership report as required by Revenue & Taxation Code §480.3. The property then is then transferred in the name of the heirs.
If applicable under Revenue & Taxation Code §63.1, a Parent-Child Exclusion (Form BOE-58-AH) or Grandparent-Grandchild Exclusion (Form BOE-58-G) can be filed with the county assessor to exclude the transfer of the real estate from reassessment for property tax purposes.
After all the property is distributed and the case is ready to be closed, the personal representative would file an Ex Parte Petition for Final Discharge and Order (Form DE-29566