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PROBATE AND ESTATE

ADMINISTRATION

As in other areas of practice in California, the Judicial Council (a group appointed to study andmake recommendations for the enhancement of the judicial process) has approved or adoptedstandard forms for use in probate matters. Use of approved forms is generally discretionary,whereas use of adopted forms is mandatory. However, even if a specific form has not beenadopted, its use may be required by local court rule, or local court rule may specify the use ofa particular locally adopted form. If the use of a particular Judicial Council form or of a localform is not mandatory, office-drafted pleadings may be utilized.

The general rules regarding the procedural aspects of estate administration, petitionprocess, giving of notice, filing and setting matters for hearing, conduct of hearings and orders,citations, and so forth, are found at Prob 1000-1265.

PROBATE OR ESTATE ADMINISTRATION (HOWER 396)

Small Estate Settlement and Administration (Hower 398)

Depending upon the size and composition of the estate and the marital status of the decedent,different methods exist in California for the summary passing of title to estate property to thedecedent’s successors or surviving spouse and children without administration.

Collection by Affidavit (Hower 398)For Personal Property (Hower 398)One provision for small estate settlement and administration is applicable to estates with agross value of real and personal property in California not exceeding $100,000. Prob 13100. Incalculating the gross value of the estate as of the date of death, the following are excluded:

• Property in which the decedent held a joint tenancy interest.• Property which passed to the decedent’s spouse.• Property in which the decedent held a life or other interest terminable at the decedent’s death.• Multiple party or POD accounts which pass to another.• Registered vehicles and vessels.• Registered manufactured homes, mobilehomes, commercial coach, truck camper, and float-

ing homes.• Amounts due the decedent for services in the armed forces.• Salary or other compensation due the decedent, not exceeding $5,000. Prob 13050.

If there is no proceeding for the administration of a decedent’s estate, or if the personal repre-sentative of the estate has consented, the successor of the decedent (either a devisee under a

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will or heir, if the decedent dies intestate (Prob 1006)) may collect money, receive tangible per-sonal property, or have evidences of a debt, obligation, or chose in action (Prob 13100)—but notreal property (Prob 13115)—by executing and delivering to the holder of the decedent’s prop-erty (Prob 13002) an affidavit or declaration stating:

• The decedent’s name.• The date and place of death.• That “At least 40 days have elapsed since the death of the decedent, as shown in a certified

copy of the decedent’s death certificate attached to this affidavit or declaration.”• Either: (1) “No proceeding is now being or has been conducted in California for adminis-

tration of the decedent’s estate.” or (2) “The decedent’s personal representative has consented in writing to the payment,

transfer, or delivery to the affiant or declarant of the property described in the af-fidavit or declaration.”

• That “The current gross fair market value of the decedent’s real and personal property inCalifornia, excluding the property described in Section 13050 of the California ProbateCode, does not exceed one-hundred thousand dollars ($100,000).”

• A description of the property of the decedent to be paid, transferred, or delivered pursuantto the affidavit or declaration.

• The name of the successor of the decedent.• Either that the affiant is the decedent’s successor or is authorized to act on behalf of the suc-

cessor with respect to the decedent’s interest in the property.• That no other person has a superior right to the property or interest.• A request that the property be paid, delivered, or transferred to the affiant/declarant.• A verification that the contents of the affidavit/declaration are true and correct. Prob 13101(a).

The affidavit or declaration must have a certified copy of the decedent’s death certificate at-tached to it and, if the decedent’s personal representative has consented, a copy of the consentand the personal representative’s letters must also be attached to the affidavit or declaration.Prob 13101(d) and (e).

If the decedent held evidence of ownership of the property in question, the evidence ofownership should also be attached. Prob 13102.

If the decedent’s estate includes real property located in California, an inventory and ap-praisal by a probate referee must also be attached to the affidavit or declaration. Prob 13103.

The person presenting the affidavit must also provide reasonable proof of his or her iden-tity to the holder of the property (Prob 13104) who is bound to release the property to thepresenter if the requirements of Prob 13101-13104 are met, and is subject to an action to re-cover the property and an award of reasonable attorney’s fees to the person bringing the ac-tion if the refusal to deliver the property was unreasonable. Prob 13105. A holder of propertywho releases it pursuant to the statutory requirements is discharged of liability with respectto the property and released of tax liability and may rely in good faith on the statements inthe affidavit or declaration and has no obligation to inquire into the truth of those state-ments. Prob 13106.

If the obligation sought to be transferred is secured by a lien on real property and an in-strument creating the lien has been recorded, then the affidavit shall include a recording ref-erence to the instrument creating the lien, and a notary public’s certificate of acknowledgmentidentifying each person executing the affidavit or declaration, and the affidavit or declaration,must be recorded in the office of the county recorder of that county. Prob 13106.5.

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The successor of the decedent who has received property is personally liable for the debtsof the decedent to the value of the property received (Prob 13109) and is also liable to any per-son having a superior right to the property by testate or intestate succession, and is liable forthree times the value of the property if the property was fraudulently secured. Prob 13110.

If the decedent was a party to pending litigation, the successor may be substituted in thelitigation in the place of the decedent. Prob 13107.5.

If proceedings for administration of the decedent’s estate are commenced and, even if thepersonal representative has consented to collection by affidavit, the personal representativemay later request that the property be restored to the estate and anyone who received suchproperty is liable to return it or its fair market value to the estate. Prob 13111.

For Real Property (Hower 398)Where the value of real property located in California does not exceed twenty thousand dol-lars ($20,000), title may be transferred to a successor to the decedent by affidavit filed not lessthan six (6) months after the death of the decedent if there is no proceeding for the adminis-tration of the decedent’s estate or the personal representative of the estate has consented. Theaffidavit must contain:

• The name of the decedent.• The date and place of death.• A legal description of the real property.• The interest of the decedent in the property.• The name and address of each guardian or conservator of the decedent at the time of death,

to the extent known.• That the gross value of all real estate owned by the decedent, excluding that identified in

Prob 13050, does not exceed twenty thousand dollars ($20,000).• That at least six months have elapsed since the death as shown in an attached certified copy

of the decedent’s death certificate.• Either that there is no proceeding to administer the decedent’s estate or that the decedent’s

personal representative has consented in writing.• That funeral expenses, expenses of last illness, and all unsecured debts of the decedent have

been paid.• That the affiant is the successor of the decedent in and to the property and that no other per-

son has a superior right to the interest of the decedent in the property.• A verification under penalty of perjury that the contents of the affidavit are true and correct.Prob 13200(a).

A notary public’s certificate of acknowledgment is required for each person signing the affi-davit (Prob 13200(b)) and an inventory and appraisal by a probate referee must be attached(Prob 13200(c)) as well as a certified copy of the death certificate, a copy of the will if claimingunder one and no estate proceeding is pending, and a copy of the personal representative’s let-ters and written consent, if applicable (Prob 13200(d) and (e)), as well as a thirty-five dollar($35) filing fee. Prob 13201.

The affidavit and attachments are filed with the court clerk, who issues a certified copy ofthe affidavit (without attachments), which is recorded in the office of the county recorderwhere the real property is located, with the decedent indexed as the grantor and the successorindexed as the grantee of the title to the real property. Prob 13202.

The successor is personally liable to the extent of the fair market value of the property forthe decedent’s unsecured debts (Prob 13204), and to any person having a superior right to the

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property by testate or intestate succession, and for three times the fair market value of theproperty if acquired fraudulently. Prob 15205. Any action to impose liability must be broughtwithin three years of the date of the affidavit or of discovering the fraud, and the limitationsperiod cannot be tolled for any reason. Prob 15205(c).

Upon the request of the personal representative, the property and the net income receivedfrom it, as well as the balance due to satisfy any encumbrance placed upon the property by thesuccessor, must be restored to the estate of the decedent, or three times the fair market valueof the property if the successor fraudulently executed or filed the affidavit to succeed to theproperty. Prob 13206.

Petition for Confirmation (Hower 398)For estates which do not total in excess of $100,000 in real and personal property, and for whichthere has been no administration instituted or if the personal representative has consented notearlier than forty (40) days after the decedent’s death, a petition may be filed with the SuperiorCourt of the county in which the decedent’s estate may be administered seeking court confir-mation of the title of the successor of the decedent to an interest in real property (and personalproperty). Prob 13151.

The petition must be verified and a court order of confirmation requested, which must con-tain the facts necessary to determine that it has been filed in the proper county; that the dece-dent’s gross estate (less excluded property identified in Prob 13050) does not exceed $100,000;a description of the real and personal property alleged to pass to the successor; the facts uponwhich it is claimed that the described property passes to the successor; a statement that eitherthere is no administration proceeding or that the personal representative of the decedent’s es-tate has consented; whether estate proceedings have been commenced in any other jurisdic-tion and, if so, where; and the name, address, and relation to the decedent of all heirs, devisees,executors, trustees, guardians, or conservators of the decedent; as well as attachment of an in-ventory and appraisal by a probate referee, a copy of a will, if the claim to succession is basedupon one, and the written consent of the personal representative, if given. Prob 13152.

After noticed hearing, the court enters an order describing and confirming the property inthe successor (Prob 13153, 13154). The successor will be personally liable to the value of theconfirmed property, less any liens or encumbrances, for the unsecured debts of the decedent.Prob 13156.

Spousal Property (Hower 398)In addition to the foregoing, title property passing by will or by intestate succession to a sur-viving spouse passes without administration. Prob 13500, et seq.

After forty (40) days after death of a spouse, the surviving spouse (or personal representa-tive, guardian, or conservator of the estate of the surviving spouse) may sell, convey, lease,mortgage, or otherwise dispose of community or quasi-community real property, and the titleconveyed is free and clear of the claims of the estate or creditors of the deceased spouse, andthe surviving spouse may record an affidavit setting forth the facts giving the surviving spousethe right to dispose of the property (Prob 13540), so long as a notice has not been filed by an-other claiming an interest in the property to be conveyed. Prob 13541.

The surviving spouse is personally liable for the debts of the deceased spouse to the extentof the value of the decedent’s community and separate property interests passing to the sur-viving spouse as well as that portion of the surviving spouse’s property which is not exemptfrom enforcement of a money judgment, less the amount of any liens and encumbrances, andsuch debts may be enforced against the surviving spouse to the same extent that they may havebeen enforced against the deceased spouse. Prob 13550, 13551, 13554.

In addition, the surviving spouse is liable to any person having a superior right to prop-erty by testate succession from the decedent and, if proceedings for the administration of the

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decedent’s estate are commenced, the surviving spouse is liable for the restitution to the dece-dent’s estate of the decedent’s property, or its fair market value, plus any net income receivedfrom the property. Prob 13561, 13562, 13563. However, claims of superior right to the dece-dent’s property are barred three years after the death of the decedent and the limitation periodcannot be tolled for any reason. Prob 13561(b).

The surviving spouse is not liable for any debts of the deceased spouse if the property of thedeceased spouse is administered and, if administered, no claim which has not been assertedwithin the claims period can be asserted against the surviving spouse. Prob 13552, 13553.

At any time after the death of a spouse, the surviving spouse may collect, by affidavit,salary or other compensation owed to the deceased spouse in an amount not to exceed fivethousand dollars ($5,000). Prob 13600.

The affidavit or declaration must be furnished to the employer of the decedent, and mustcontain:

• The name of the decedent.• The date and place of death.• That the affiant or declarant is the surviving spouse, or guardian or conservator of the es-

tate of the surviving spouse.• That the surviving spouse is entitled to the decedent’s earnings by will or intestate succes-

sion and that no one has a superior right to those earnings.• That no proceeding for administration of the decedent’s estate has been instituted.• That earnings of up to $5,000 be promptly paid to the affiant or declarant by Prob 13600-

13605, inclusive.• That no other pending request for earnings of another employer exists.• That no other compensation has been collected (or, if collected, the amount specified).• A request for payment of the salary or compensation, not to exceed $5,000.• Averification under penalty of perjury of the truth of the contents of the affidavit or declaration.Prob 13601.

Payment pursuant to this provision discharges an employer of liability with respect to the com-pensation paid (Prob 13603), and refusal to pay subjects the employer to an action for theamount due, as well as reasonable attorney’s fees if the court finds the refusal to pay unrea-sonable. Prob 13604.

Confirmation of Ownership (Hower 400)A surviving spouse may petition the Superior Court of the county in which the estate of thedeceased spouse may be administered for confirmation of ownership by the surviving spouseof property passing to the surviving spouse without administration. Prob 13650, et seq.

The petition must allege that administration of the estate is not necessary, and must setforth the facts necessary to determine the county in which the decedent’s estate may be ad-ministered; a description of the decedent’s property passing to the surviving spouse withoutadministration; the facts upon which it is claimed that the property may pass without admin-istration; a description of any interest in community or quasi-community property which thecourt is requested to confirm to the surviving spouse; the name, age, address, and relation tothe decedent of each heir, devisee, executor, and personal representatives of the decedentknown to the surviving spouse; and, if the property is claimed to pass by will, attachment of acopy of the will to the petition. Prob 13651. Attorney’s fees are not allowed, but are subject toagreement between the petitioner and attorney and, if in dispute, the court may be petitionedto determine the reasonableness of the fees claimed. Prob 13660.

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Notice of hearing on the petition is given to all interested persons and, after determination bythe court, an order is entered identifying and confirming property to the surviving spouse and, ifappropriate, identifying that property which is subject to administration or further notice and pro-ceedings (such as ownership of an unincorporated business) (Prob 13658). Prob 13655-13659.

Small Estate Set-aside (Hower 443)Where the decedent’s estate (consisting of personal property located anywhere and real prop-erty located in California), after deduction of all liens and encumbrances and the value of anyprobate homestead under Prob 6520, has a net value of $20,000 or less, the estate may be setaside to the surviving spouse and minor children by petition filed in the Superior Court of acounty in which the decedent’s estate may be administered. Prob 6600, et seq.

The petition must be filed by the executor named in the will (if any), the surviving spouse, achild or its guardian, or the personal representative of the decedent’s estate, if any, and must con-tain an allegation that the estate is subject to the small estate set-aside provisions of the ProbateCode and a request for an order setting the estate aside; the facts necessary to determine thecounty in which the estate may be administered; the name, age, address, and relation to the dece-dent of all heirs and devisees of the decedent; a specific description and estimate of value of thedecedent’s property and a list of all liens and encumbrances at the date of death; a descriptionand estimate of value of real property located outside of California that passed to the survivingspouse and minor children; a description and estimate of the value of property that passed to thesurviving spouse and minor children by joint tenancy or joint account; a designation of probatehomestead property which has been set aside; a statement of any unpaid liabilities for expensesof the last illness, funeral charges, and expenses of administration; and the considerations thatjustify disposition of the estate under the small estate set-aside provisions. Prob 6604, 6606.

The petition may be filed anytime before the entry of a final order for distribution of thedecedent’s estate, and may be filed in a pending proceeding for administration, along with apetition for probate of the decedent’s will or for administration of the estate, or (if there are noother administration proceedings) independently. Prob 6605.

Notice of hearing on the petition must be given to all interested persons and the hearingmust be set at least 15 days after the filing of the petition. If a pending hearing to determine fi-nal distribution is set for before the hearing on the petition, that hearing will continue to coin-cide with the hearing on the set-aside petition. Prior to the hearing, an inventory and appraisalof the estate (prepared as in any other case) must be filed by the petitioner or personal repre-sentative. Prob 6607, 6608.

If the court determines that it is equitable to do so, it shall order the estate set aside for thesurviving spouse and children, after payment of expenses for the last illness, funeral charges,or expenses of administration from the estate. The court takes into consideration the needs ofthe surviving spouse and children, creditors’ claims, liens and encumbrances on the property,and the intent of the decedent and the decedent’s estate plan as expressed in inter vivos and tes-tamentary documents, and any other relevant considerations. If the spouse is remarried, it ispresumed that the needs of the spouse do not justify the setting aside of the estate in his or herfavor. The court’s order setting aside the estate is final and conclusive, and the person to whomthe property is conferred is subject to personal liability for claims for unsecured debts againstthe decedent to the extent of the value of the property as of the date of death, less any liens orencumbrances. If the court determines not to set aside the estate, the property is subject to ad-ministration as though no petition had been filed. Prob 6609-6612.

Summary Administration (Hower 400)Prob 7660-7666 provides for the summary disposition of estates with a total value which doesnot exceed $20,000 (without court authorization) or $100,000 (with court authorization), if the

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public administrator takes possession or control of, or is appointed personal representative of,the decedent’s estate. Prob 7660.

The public administrator is authorized to receive the property of the decedent, withdrawdeposits, collect debts, sell property, pay expenses and claims, and distribute property to thebeneficiaries of the decedent (Prob 7661-7663); to file with the court, and retain a copy of forthree years, a statement showing the property which came into the control of the public ad-ministrator and its disposition (Prob 7665); and to receive compensation of not less than $600for services. Prob 7666.

Persons to whom property is distributed pursuant to these provisions are personally liableto the extent of the value of the property, less liens and encumbrances, for unsecured debts ofthe decedent. Prob 7664.

FORMS OF PROBATE OR ESTATE ADMINISTRATION

(HOWER 403)In addition to the methods previously identified (for transfer of property where the estate hasa total value, excluding vehicles and other registered property, of $100,000 or less, or wherethere is real property valued at less than $20,000, or where property may be transferred by affi-davit or declaration, or where spousal property is involved or the estate is valued at less than$20,000 and may be set aside), California provides for estate administration either as a formal(supervised) process or by the Independent Administration of Estates Act (Prob 10400, et seq.)providing the personal representative with either full authority (Prob 10402) to administer theestate without court supervision (Prob 10401) or limited authority (Prob 10403) to do so, re-quiring court supervision of specified acts relating to the ownership or sale of real property.

Generally, personal representatives have authority to collect and manage the estate of thedecedent without approval or supervision by the court unless specifically precluded from do-ing so by statute. Prob 9610. The personal representative may, however, by petition, seek au-thorization, instruction, approval, or confirmation of the acts of the personal representative, inthe administration, management, investment, disposition, care, protection, operation, orpreservation of the estate, or in the incurring or payment of costs, fees, or expenses. Prob 9611.

Moreover, interested persons may also petition and, upon a showing that if the petition isnot granted the estate will suffer great and irreparable injury, the court may direct the personalrepresentative to act or not to act concerning the estate, or the court may suspend the powersof the personal representative if the court deems it necessary to do so to protect the interest ofthe petitioner from being jeopardized. Prob 9613, 9614.

Personal representatives may also enter into agreements with parties in dispute to refer thedispute to the court or, with court approval, to arbitration. Prob 9620, 9621.

COMMENCING PROBATE AND ESTATE ADMINISTRATION

PROCEEDINGS (HOWER 406)

Petition for Probate of a Will or Petition to Prove a Will (Hower 406)

Any interested person may petition for determination of the date and place of the decedent’sdeath and administration of the decedent’s estate and probate of a will. Prob 8000.

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An executor named in a will who, without good cause, does not petition for administra-tion of the estate within thirty (30) days after knowledge of the decedent’s death can be heldto have waived the right to appointment as personal representative. Prob 8001.

The petition shall contain:

• The date and place of death.• The street address and county of decedent’s residence at the time of death.• The name, age, address, and relation to the decedent of heirs and devisees.• The character and estimated value of estate property.• The name of the person for whom appointment as personal representative is sought.

Prob 8002(a).

A photocopy of the will must be attached as well. If holographic, a typed copy of the will is re-quired as well and, if in a foreign language, an English translation must be attached. Also, if anexecutor is named in the will, the petition must state whether the executor consents to orwaives appointment as personal representative. Prob 8002(b).

Petition for Administration When No Will Exists (Hower 410)

A petition for administration may be filed by any interested person and must contain:

• The date and place of death.• The street address and county of decedent’s residence at the time of death.• The name, age, address, and relation to the decedent of heirs and devisees.• The character and estimated value of estate property.• The name of the person for whom appointment as personal representative is sought.

Prob 8002(a).

Obtain an Order for Hearing the Petition to Prove a Will or forAdministration (Hower 410)

The petition must be set for hearing not less than fifteen (15) days and not more than thirty (30)days after filing, unless the petitioner requests a longer notice period, in which case the hear-ing shall be set for not more than forty-five (45) days after the filing of the petition. Prob 8003.

The contents and form of notice of hearing are as prescribed in Prob 8100.

Arrange for Publication of the Notice of Order for Hearing and Affidavit ofPublication (Hower 411)

Notice must be published in a newspaper of general circulation (published at least once a weekin the city where the decedent resided at the time of death) with the first publication at leastfifteen (15) days before the hearing and publication continuing for three publications (with atleast five days between the first and last publication). The notice shall be captioned in 8-pointor larger type and the body in 7-point or larger type, and publication must be proved prior tothe hearing by an affidavit containing a copy of the notice and specifying the facts regardingpublication. Prob 8120-8125.

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Mail the Notice of Order for Hearing and Affidavit of Mailing Notice to AllInterested Persons Including Creditors / Mail Notice of Rights to the Spouseand Minor Children and Prepare an Affidavit of Mailing (Hower 411)

The notice must be mailed or personally served upon each heir of the decedent and each de-visee or executor named in the will, creditors, or interested public entities. Prob 8110, 8112.

If the will contains a provision for a testamentary trust for charitable purposes (other thana charitable trust with a designated trustee resident in California), notice must also be given tothe Attorney General. Prob 8111.

If the decedent is a citizen of a foreign country who hasn’t named an executor, or propertywill pass to a citizen of a foreign country, notice must be given to the recognized diplomatic orconsular official of that country maintaining an office in the United States. Prob 8113.

Arrange for the Appearance of Witnesses (Hower 413)

The attendance of witnesses may be compelled by subpoena. CCP 1985, et seq.

PROBATE COURT PROCEDURE (HOWER 416)

Hearing on Petition to Prove the Will or Petition for Administration (Hower 416)

At the hearing, the court may take evidence with respect to the date, place, and manner ofdeath; the place of domicile and residence at the time of death; the character and value of thedecedent’s property; and whether a will was left. Prob 8005(a). In addition, the court shall es-tablish the date and place of death; that the decedent was domiciled or left property in thisState; the existence or nonexistence of decedent’s will; and service and publication of the no-tice, as required by statute. Prob 8005(b).

A will may be proved upon evidence of one subscribing witness only, which may consistof an affidavit of the witness to which a copy of the will is attached or contained in the will it-self. Prob 8220. If a witness is unavailable, the will may be proved by proof of the handwritingof the testator and either proof of the handwriting of one witness or receipt in evidence of awriting reciting facts showing due execution of the will either as a writing in the will signedby all witnesses or an affidavit of a person with personal knowledge of the circumstances ofthe execution. Prob 8221.

If a will is contested, the contestant files an objection to probate of the will with the clerkof court, who issues a summons and a copy of the summons, and objection is served with no-tice of the petition for administration of the estate on all interested parties. A written response(answer or demurrer on any of the grounds available in a civil action) to the objection is re-quired within thirty (30) days of service of the summons. If the demurrer is sustained, the pe-titioner may have fifteen (15) days within which to amend the objection; if overruled, the re-spondent may have fifteen (15) days to answer the objection. Prob 8250, 8251. At the trial onthe will contest, the proponents of the will have the burden of proving its due execution, andthe contestants have the burden of proving the grounds for contest, and the subscribing wit-nesses and/or other evidence shall be produced and examined. If there is a later will purport-ing to revoke the contested will which has also been petitioned for probate, the court will firstdetermine whether the later will is entitled to probate. Prob 8252, 8253.

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Selection of the Personal Representative (Hower 418)

At the hearing, the court shall appoint a personal representative. Prob 8006. The appointmentof the personal representative identified in the petition may be contested as being without pri-ority or incompetent to serve as personal representative. If another asserts the right to ap-pointment as personal representative, the contestant must file a petition and serve notice andthe court will hear the two petitions together. Prob 8004.

Order Admitting the Will or Granting Administration (Hower 418)

At the hearing, if established, the court shall order the will to probate. Prob 8006. Collateral at-tack on the court’s order is not permitted except upon a showing of extrinsic fraud upon the courtor that the order is based on the erroneous determination of the decedent’s death. Prob 8007.

If the will is contested, the court shall try to determine any contested issues of fact and maymake appropriate orders, either admitting the will to probate or rejecting it, in whole or in part.Prob 8252(b), 8254.

Within 120 days after a will was admitted to probate, any interested party who was not aparty to a will contest and who had no actual notice of such a contest may petition to revokethe probate of the will, setting forth in writing the grounds for objection. The process in theevent of a petition for revocation of probate follows that of a will contest. Prob 8270, 8271.

If the court determines that the will should be denied probate, the court will revoke theprobate. Revocation terminates the powers of the personal representative. Prob 8272.

Issuance of Letters Testamentary or Letters of Administration (Hower 421)

A person has no power to administer an estate until the appointment as personal representa-tive becomes effective (i.e., when the person appointed is issued letters). Prob 8400. Letters areissued to the appointed personal representative only after the giving of any required bond andthe taking and subscribing by the personal representative of an oath to perform, according tolaw, the duties of the office. The oath includes an acceptance of the office and is filed with theclerk. Prob 8403. In addition, the personal representative (other than a trust company or pub-lic administrator) must execute and file an acknowledgment of receipt of a statement of the du-ties and liabilities of the office of personal representative in a form prescribed by the JudicialCouncil prior to issuance of letters. Prob 8404.

Notice to Creditors (Hower 424)

In addition to the notice of administration generally required, notice to creditors is requiredpursuant to Prob 9050-9054. The form of notice is prescribed in Prob 9052 and must be givenwithin four (4) months after letters are issued to the first general personal representative. Per-sonal representatives must give notice within thirty (30) days of personal knowledge of thecreditor if such knowledge comes after (or within thirty days of the expiration of) the four-month period identified. Prob 9050, 9051. Notice is not required if the creditor has filed a claimor if the personal representative has received a demand for payment from the creditor whichis treated by the personal representative as a claim. Prob 9053.

Appointment of Trustees and Guardians (Hower 424)

Guardianship and conservatorship are governed by the provisions of Division of the Califor-nia Probate Code (Prob 1400, et seq.).

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Order Admitting a Foreign Will to Probate (Hower 425)

California has adopted the Uniform International Wills Act (Prob 6380-6390) as well as provi-sions relating to the probate of nondomiciliary decedent’s wills upon petition. Prob 12520-12524.

PROCEDURES BEFORE ESTATE DISTRIBUTION (HOWER 427)

Collect and Preserve the Decedent’s Assets (Hower 429)

The personal representative has the right to take control of all of the property of the decedent’sestate; collect all debts due; receive all rents, issues, and profits; pay taxes; and take all steps rea-sonably necessary for the management, protection, and preservation of the estate. Prob 9650.

All cash shall be kept in interest-bearing accounts or other investments, unless reasonablynecessary for the orderly administration of the estate. Prob 9652.

The personal representative shall commence and prosecute actions to recover fraudulentlyconveyed property, or gifts in view of death. Recovered property is to be sold and applied tocreditors’ claims. Prob 9653.

The heirs or devisees, alone or jointly with the personal representative, may maintain ac-tions to acquire title to property or for possession of property. Prob 9654.

A personal representative may vote shares of stock or exercise corporate ownership rights(Prob 9655); insure estate property (Prob 9657); deposit and withdraw funds (Prob 9700); de-posit and withdraw personal property (Prob 9701); invest estate money in specific securities,funds, annuities, options, subscriptions, or exercise the same (Prob 9730-9735); continue the op-eration of the business of a decedent (Prob 9760); abandon or dispose of personal property nototherwise specifically devised, upon notice or as approved by the court (Prob 9780-9788); withcourt approval, continue as a partner in a partnership (Prob 9761-9763); with court approval,borrow money and give security interests and encumber property (Prob 9800-9807); compro-mise or settle claims or actions (Prob 9830); lease property as lessor on a month-to-month basis,or for not more than a year where the rental does not exceed $5,000 per month. Prob 9941.

With court approval, the personal representative may sell real or personal property, afterpublic notice and hearing and confirmation (Prob 10000, et seq.); accept deeds in lieu of foreclo-sure or trustee’s sales (Prob 9850, et seq.); dedicate, exchange, encumber, lease, or grant optionsto, or employ or compensate agents with regard to, real property (Prob 9800-9807, 9900-9983).

Court approval is also required for:

• Allowance of compensation to the personal representative.• Allowance of compensation to the attorney for the personal representative.• Settlement of accounts.• Sale, exchange, or grant of an option of property of the estate to the personal representative

or to the attorney for the personal representative.• Allowance, payment, or compromise of a claim of the personal representative of the attor-

ney for the personal representative.• Settlement or compromise of a claim, action, or proceeding by the estate against the personal

representative or the attorney for the personal representative.• Extension, renewal, or modification of the terms of a debt or other obligation of the personal

representative or the attorney for the personal representative owing in favor of the decedentor the estate.

Prob 10501.

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Prepare the Inventory (Hower 437)

The personal representative is required to include in the inventory all of the property of thedecedent and to identify, to the extent possible, whether the property is community, quasi-community, or separate, as well as any debts or demands devised in a will. Prob 8850, 8851.

The personal representative or any interested person may petition the court for issuance ofa citation to any person to answer interrogatories or to appear before the court, or both, con-cerning the possession or disposition of the decedent’s property and/or to account for thesame. Prob 8870-8873.

The inventory lists each item separately and the fair market value of the item at the timeof death. Prob 8802.

Prepare an Appraisal (Same Form as for Inventory) (Hower 441)

The appraisal shall be prepared by the personal representative, the probate referee (appointedby the court), or an independent appraiser. Prob 8900.

The personal representative is authorized to determine the appraisal value of money orcash items (Prob 8901) and then delivers the inventory to the probate referee, who appraisesall property other than that appraised by the personal representative. Prob 8902. The probatereferee must complete the appraisal within sixty (60) days after delivery of the inventory or re-port to the personal representative and the court as to why the property has not been appraisedand estimating the time required to complete the appraisal. Prob 8940, 8941.

The probate referee must retain and make available to the personal representative, for aperiod of three (3) years, the appraisal reports and backup data used to make the appraisals.Prob 8909.

Alternatively, the court, for good cause and upon petition by the personal representative,waives the probate referee’s appraisal (Prob 8903); or, for unique, artistic, unusual, or specialitems, the personal representative may choose to have such items appraised by an indepen-dent qualified expert by noting that election on the inventory prior to providing it to the pro-bate referee. The referee may object to the election by petitioning to the court within five (5)days after receipt of the inventory. Prob 8904.

The personal representative or an interested person may demand an appraisal report, backupdata, or justification of the appraisal of an item from the probate referee, or may file a written ob-jection to the appraisal with the court, which will be determined by hearing. Prob 8906, 8908.

File the Inventory and Appraisal (Hower 442)

The inventory and appraisal are filed with the court, and served on each person requesting aspecial notice, within four (4) months after the first issuance of letters to a general personal rep-resentative. Prob 8800, 8803.

Failure to file an inventory and appraisal within the time period specified may result in thecourt compelling such filing; the removal of the personal representative; and imposition of per-sonal liability on the personal representative for injury to the estate or an interested person, in-cluding attorney’s fees. Prob 8804.

At the time of filing the inventory and appraisal, the personal representative must also filea certification that either: (1) the decedent owned no real property in California and thereforethe provisions of R&T 480 do not apply, or (2) a change in ownership statement has been filedwith the county recorder or assessor with regard to each piece of property owned by the dece-dent at the time of death. Prob 8800(d).

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Procedures for Collecting Specific Estate Assets (Hower 442)A preliminary change in ownership form must be filed (along with a notification of death ofthe real property owner) for each piece of real property owned by the decedent at the time ofdeath, in each county in which real property is located. R&T 480.

Sales of real property, whether private or public, with or without notice, requiring courtconfirmation are provided for in Prob 10300, et seq. Notice of sale is generally required, unlessa direction or authority to sell the property is contained in a will. Sale may be public or privateand confirmed by the court. If privately sold, an appraisal is required and the bid is at least 90%of the appraised value. At the confirmation hearing, the court may confirm the sale on thesubmitted bid, or accept new bids for the purchase (the new offer must be at least 10% higheron the first $10,000 and 5% more on the amount bid in excess of $10,000), or order a new sale.

Sales of personal property are covered in Prob 10250, et seq. Generally, notice of sale is re-quired either by posting or publication, and sales must be confirmed by the court, unless ex-empt, after hearing. At the hearing, new bids which are 10% more than the bid at sale may bemade and accepted by the court, or the court may order a new sale.

Sales of securities are found at Prob 10200, 10202.Saving accounts and mutual capital certificates appear in Prob 10201.Sales of leasehold interests are dealt with in Prob 10203.Partnership interests may be sold in the same manner as personal property. Prob 10204.Contracts for the purchase of real property are addressed at Prob 10206.

DISTRIBUTION OF THE ESTATE AND PAYMENT OF CLAIMS

(HOWER 442)

Distribution of Family Allowances to a Surviving Spouse and/or MinorChildren (Hower 443)

Please refer to the prior discussions of family allowances, small estate set-aside, probate home-stead, and marital property.

Filing and Hearing of Creditors’ Claims and Payment of Allowed Claims(Hower 443)

Creditors’ claims must be filed with the court (and a copy mailed to the personal representa-tive), or forever be barred, within four (4) months after the first issuance of letters to a generalpersonal representative, or within thirty (30) days of notice of administration given to the cred-itor, whichever is later. Prob 9002, 9100, 9150. The time period may be extended by the court,upon petition by the creditor, if the creditor (or its attorney) received notice less than fifteen(15) days before the close of the four-month notice period or the creditor had no knowledge ofthe existence of the claim until less than fifteen (15) days before the close of the claim period,and the petition for extension was filed within thirty (30) days after knowledge by the credi-tor. In no event, however, can the period for the filing of a claim be extended beyond the ear-lier of either: (1) one year after the first issuance of letters to a general personal representativeor (2) the time the court makes an order for final distribution of the estate. Prob 9103.

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A claim must be supported by the affidavit of the creditor: that it is a just claim; settingforth the facts supporting the claim, the amount of the claim, and that all offsets and amountshave been credited; if the claim is not due or contingent or the amount not yet ascertainable,the facts supporting the claim; and, if not made by the creditor, the reason why the affidavit isnot made by the creditor. Prob 9151(a). The personal representative may also require satisfac-tory vouchers or proof to support the claim. Prob 9151(b).

If the claim is based on a written instrument, an original or copy of the instrument shouldbe attached or, if a recorded document, a recording reference provided. Prob 9152.

Claims by public entities are addressed at Prob 9200-9205.The personal representative either allows or rejects claims in whole or in part, in writing,

setting forth the pertinent information regarding the claim and its rejection or allowance andinforming the creditor, if rejected, that it has three (3) months in which to act on a rejected claim,and filing the allowance or rejection with the court and giving notice to the creditor of thesame. Prob 9250.

If the personal representative is not authorized to act under the Independent Administra-tion of Estates Act, all allowed claims must be submitted by the clerk to the court for approvalor rejection and the court may examine the creditor and receive evidence to determine the va-lidity of the claim prior to endorsing on the claim whether it is approved or rejected by thecourt. Prob 9251. The refusal or neglect of the personal representative or judge to allow or re-ject a claim within thirty (30) days of the filing of the claim may be treated by the creditor as arejection of the claim. Prob 9256.

Claims by the personal representative, or the attorney for the personal representative, mustbe submitted to the court and, in the court’s discretion, may require a petition and noticedhearing. Prob 9252.

The allowance of a claim may be contested by any interested party. Prob 9254.Creditors may contest the rejection of claims, in whole or in part, by bringing an action on

the claim. Prob 9255, 9350, et seq.Claims established by judgment after the death of the decedent are payable as claims in the

ordinary course of administration of the estate, and not pursuant to the Enforcement of Judg-ments Law (CCP 680.010, et seq.). Prob 9300.

An action pending against the decedent at the time of death cannot be continued and norecovery is allowed against property of the decedent’s estate unless a claim is first filed, is re-jected, and within three (3) months after the rejection the claimant applies to the court in whichthe action is pending for substitution of the personal representative for the decedent as a partyin the action. Prob 9370. Similarly, an action cannot be filed against a decedent’s personal rep-resentative until a claim has been first filed and rejected, and the applicable statute of limita-tions is tolled during the pendency of the claim until it is allowed or rejected. Prob 9350-9352.

Debts are to be paid in the following order of priority (except that debts owed to the UnitedStates and this State that have preference under the law shall be given that preference):

• Expenses of administration.• Funeral expenses.• Expenses of last illness.• Family allowance.• Wage claims.• Obligations secured by mortgage, deed of trust, or lien.• General debts.Prob 11420(a).

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No debts of any class may be paid until all debts of the prior class have been satisfied and, asbetween debts of a class, no priority is given and all receive a proportionate share if the estateis insufficient to satisfy the full amount of all debts of the class. Prob 11420(b).

As soon as there are sufficient funds to cover the costs of administration, funeral expenses,expenses of last illness, family allowance, and wage claims are to be paid. All other debts are notrequired to be paid until ordered by the court. Interest accrues on debts at the legal, or contracted,rate until paid from the date of order for payment (or as specified by contract). Prob 11421-11423.

THE FINAL ACCOUNT AND CLOSING THE ESTATE

(HOWER 454)

File the Final Account and Petition for Settlement and Distribution/RequestOrder for Hearing on Final Account and Petition for Distribution (Hower 455)

The personal representative or an interested party may petition for final distribution of thedecedent’s estate (Prob 11600) when all debts have been paid or provided for, or if the estate isinsolvent, and the estate is in a condition to be closed. Prob 11640.

A final account must be filed when the estate is in a condition to be closed. Prob 10951. Anaccount must also be filed when it has been more than one year since the issuance of letters, ormore than one year after the filing of the last account, on the petition of an interested personor the court’s own motion, and not more than sixty (60) days after the termination of the per-sonal representative’s authority. Prob 10950. The account must include both a financial state-ment and report of administration, including (with supporting schedules) a summary state-ment of the property in all inventories; receipts; gains on sales; acquisitions of property;disbursements; losses on sales; other dispositions of property; property on hand; and the lia-bilities of the estate, including creditors’ claims (whether notice to creditors was given; theamounts, names, dates of filing and action taken on claims; and claims not paid, satisfied, oradequately provided for and, if secured, the nature of the security). Prob 10900.

A petition for an order for final distribution of the estate or a report on the status of theestate must be filed no later than one year (if no federal estate tax return is required) or eight-een (18) months (if a federal estate tax return is required) after the date of issuance of letters.Prob 12200.

If the personal representative fails to petition or report within the time limits required, thecourt may cite the personal representative and either order the personal representative to filethe petition or order the continued administration of the estate. If the personal representativefails to comply with that order, the personal representative may be removed from office by thecourt. Prob 12202, 12204.

The filing of a final account, and such other accounts as may be required, is governed bythe provisions of Prob 10900, et seq.

Give Notice of the Hearing to Interested Parties (Hower 455)

Notice shall be given to all interested parties, to the Attorney General if some portion of theestate would escheat to the State, and to the Controller if property is to be distributed to theState because there is no known beneficiary or if the beneficiary’s whereabouts are un-known. Prob 11601.

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Prepare and File Copies of Federal and State Estate and Income TaxReturns with the Final Account (Hower 455)

Required California tax returns may include the final personal income tax return for the dece-dent, the estate (fiduciary) income tax return, and the California estate tax return.

Hearing on the Final Account and Petition for Distribution/Request OrderAllowing Final Account (Hower 455)

The personal representative or any interested party may oppose the petition. Prob 11602.If the court determines that the conditions for distribution are satisfied, it will order dis-

tribution of the estate to the persons entitled to it, naming the distributees and their shares; andidentify the limitations or conditions accompanying the property, if any. Prob 11603. If distri-bution is to be made to a person other than a beneficiary, the court may inquire into the cir-cumstances, consideration, and execution of the transfer and may refuse to order distributionor may order distribution on such terms as the court deems just and equitable if it finds thetransfer was obtained by fraud, duress, or undue influence or that the consideration paid to orby the beneficiary was grossly unreasonable. Prob 11604.

At a hearing for final distribution or for allowance of compensation, the court may also re-duce the compensation of the personal representative or the attorney for the personal repre-sentative if it determines that the time taken for administration exceeds the time permitted bystatute or prescribed by the court, that the delay was within the control of the personal repre-sentative, and that the delay was not in the best interest of the estate (even if the reductionwould cause the resulting compensation to not be reasonable compensation for the servicesrendered). Prob 12205.

If two or more beneficiaries are entitled to the distribution of undivided interests in prop-erty but cannot come to an agreement as to the allotment or partition, the court may be peti-tioned to partition or divide the property between them. Prob 11950 et seq.

Compute and File State Inheritance Tax Return or Waiver (Hower 456)

If the estate has a gross value exceeding $400,000, and assets of $100,000 or more will be dis-tributed to beneficiaries outside of California, a California Income Tax Clearance must be ob-tained from the California Franchise Tax Board.

Receive Order for Settlement and Decree of Distribution (Hower 456)

The personal representative may immediately distribute the property to the persons entitledto distribution without further notice or hearing when an order settling the final account andfor final distribution is entered. Prob 11641.

Collect Receipts for Assets by Distributee (Hower 456)

The personal representative shall obtain receipts from distributees of estate property in accor-dance with the terms of the final order for distribution of the estate. With regard to real prop-erty, the recordation of the court order for distribution or the personal representative’s deedconveying the property in the county in which the real property is located is deemed to be areceipt of the distributee for the property. Prob 11750, 11751.

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If the distributed property is subject to a life estate only in the distributee, the personal rep-resentative must demand and receive an inventory of the property from the distributee, copiesof which are filed with the court and sent to the remainder distributee. Prob 11752.

File Petition for Discharge of Personal Representative/Request OrderDischarging Personal Representative (Hower 457)

A petition for an order discharging the personal representative may be made ex parte after thefiling of all receipts (or excuse from filing as provided in Prob 11753 after reasonable effort toobtain a receipt after delivery of the property) in compliance with the order for final distribu-tion. Prob 11753, 12250.

A personal representative may also petition for discharge and an order terminating theproceeding at any time, even before issuance of letters, when it appears that there is no prop-erty of any kind belonging to the estate subject to administration. Prob 12251.

SPECIAL PROBATE PROCEEDINGS (HOWER 457)

Special Administration (Hower 457)

Special administration, and appointment of a special administrator, may be made at any timethe court deems it necessary, with or without notice, with or without bond, in the court’s dis-cretion. Prob 8540-8543.

A special administrator must take the oath and, if the special administrator was appointedto undertake a particular act or exercise certain authority, letters issued must indicate a nota-tion of the particular act or authority the special administrator was appointed to undertake.Prob 8542.

A special administrator may exercise statutorily granted general authority, unless limitedby the letters issued, and the powers of a special administrator cease upon issuance of lettersto a general personal representative or as otherwise directed by the court. Prob 8544-8546.

Administration of Omitted Property (Hower 458)

If subsequent administration of an estate is required because other property is discovered orfor any other reason, the court, after noticed hearing, will appoint a personal representative inthe same order of priority as previously appointed, except that the person who served as per-sonal representative previously at the time of the order of discharge has priority, and the courtmay require a supplemental account and make further instructions or orders relating to theproperty. Prob 11642, 12252.

Decree of Descent (Hower 458)

A petition to determine the persons entitled to distribution of the decedent’s estate and in-cluding the basis for any claim of entitlement may be filed by the personal representative orany interested person at any time after letters are first issued to a general personal representa-tive. Prob 11700.

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Notice of the hearing on the petition must be given to all interested persons (including theAttorney General if any portion of the estate is the escheat to the State) and any interested per-son or person claiming an interest in the decedent’s estate may appear and file a written state-ment identifying the claim made or opposing the petition. If a person does not file a statement,he or she is precluded from further participation in the proceeding, but there is no adverse im-pact on his or her interest in the estate. The court, after considering the statements and evi-dence at the hearing, will enter a final order determining the persons entitled to distributionof the decedent’s estate and specifying their shares. Prob 11701-11705.

One who feloniously and intentionally kills a decedent is precluded from receiving prop-erty from the decedent’s estate, either by testate or intestate succession. Prob 250. Similarly, ajoint tenant who feloniously and intentionally kills his or her co-tenant severs the joint tenancyrelationship so that the share of the decedent passes as the decedent’s property and there is noright of survivorship. Prob 251. Named beneficiaries of bonds, life insurance policies, or othercontractual arrangement, or any other person who acquires property or an interest in propertythrough a felonious and intentional killing of the decedent, also forfeit any right to proceedsor property resulting from the death of the decedent, and may not bring an action for thewrongful death of the decedent or benefit from such an action. Prob 252, 253, 258. A final judg-ment of conviction of felonious and intentional killing is conclusive. Prob 254.

LIMITATIONS ON AND LIABILITY OF THE PERSONAL

REPRESENTATIVE (HOWER 459)A personal representative is required to use ordinary care and diligence in the managementand control of an estate. Prob 9600.

If a personal representative breaches a fiduciary obligation, he or she is liable for loss or de-preciation in value resulting from the breach, with interest; profit made through the breach bythe personal representative, with interest; or profit that would have accrued to the estate, butfor the breach. Prob 9601(a). If, however, the personal representative acted reasonably and ingood faith under the circumstances as known, the court may excuse the personal representa-tive in whole or in part from liability, if it is equitable to do so. Prob 9601(b).

A personal representative is also personally liable (and liable on his or her bond) for:

• Failure to pay debts ordered (Prob 11424).• Failure to file an inventory and appraisal as required (Prob 8804).• Contractual obligations on which he or she did not reveal his or her status as personal rep-

resentative (Prob 9606).

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