ADA
local probate rule 3

PROBATE RULE 3: APPOINTMENT OF EXECUTORS AND ADMINISTRATORS

A. LETTERS OF SPECIAL ADMINISTRATION
B. PETITION FOR PROBATE OF WILL OR CODICIL
C. ALLEGATIONS RE HEIRS, BENEFICIARIES, AND FIDUCIARIES
D. PUBLICATION
E. LETTERS
F. DUTIES AND LIABILITIES OF PERSONAL REPRESENTATIVE FORM
G. REMOVAL OF A PERSONAL REPRESENTATIVE

A. LETTERS OF SPECIAL ADMINISTRATION

Petitions for letters of special administration ordinarily will not be granted on less than 24 hours' notice to the surviving spouse or registered domestic partner, to the nominated personal representative, or to any other person who, in the opinion of the Court, appears to be entitled to notice. In making the appointment, preference is given to the person entitled to letters testamentary or of administration, but if it appears that a bona fide contest exists between these persons, the Court will usually appoint a neutral person or corporation as special administrator. The petitioning party is advised to ascertain whether a bond must be posted prior to the issuance of letters of special administration.

(Eff. 1/01/05)

B. PETITION FOR PROBATE OF WILL OR CODICIL

When a petition for probate of will or codicil is filed, the original of the document being offered for probate must be filed prior to, or concurrently with, the petition. If the will or any part thereof is handwritten, a typewritten copy of the handwritten portion must also accompany the petition.

If the will is in a foreign language, a translation by an expert must be submitted at the time of filing the petition for probate. An affidavit or declaration as to the expertise of the translator must accompany the translation.

C. ALLEGATIONS RE HEIRS, BENEFICIARIES, AND FIDUCIARIES

In a petition for letters testamentary, letters of administration, letters of administration with will annexed, or letters of special administration, all heirs under Probate Code §§6402 and 6402.5 known to the petitioner, and all beneficiaries living at the time of the decedent's death, whether vested or contingent, who at the time of the decedent's death might be entitled to share in the distribution of the estate, whether it consists of separate or community property, must be specifically named. If any named beneficiary predeceased the decedent, that fact must be alleged in the petition with the date of death if known. All beneficiaries provided for in the will whose interests have been revoked by a subsequent codicil must also be named.

Where the will devises property to a fiduciary (e.g., trustee, custodian or guardian), the petition, in addition to giving the name and address of the fiduciary, must list the names and addresses of all known beneficiaries of the trust, custodianship, guardianship, etc., who are living or in existence at the date of death of the decedent. Alternate or successor trustees, custodians, or guardians need not be named in the petition. If a post office box is listed as the mailing address for a fiduciary or beneficiary, the street address of the fiduciary or beneficiary must also be shown if available.

D. PUBLICATION

The publication of the Notice of Petition to Administer Estate is sufficient notice of all wills or codicils that are offered for probate and filed with, and specifically referred to in, the petition. Wills or codicils not specifically referred to in the petition must be presented to the Court in an amended or subsequent petition and a new Notice of Petition to Administer Estate must be published.

Where the will has been admitted to probate, no new or additional publication of the Notice of Petition to Administer Estate is required upon the filing of a subsequent petition for letters testamentary or letters of administration with will annexed.

See Attachment PB-4000  for information to assist in arranging for publication.

(Eff. 7/01/06)

E. LETTERS

Where the will has been admitted to probate and either there is a vacancy in the office of the personal representative or no letters testamentary have been granted, a new petition for letters testamentary or for letters of administration with will annexed, whichever is applicable, must be filed prior to the issuance of letters.

If the will is denied admission to probate after the filing of a petition for letters testamentary or for letters of administration with will annexed, e.g., in the event of a will contest, letters of administration may be granted on the basis of the petition already on file. No new publication of the Notice of Petition to Administer Estate is required.

F. DUTIES AND LIABILITIES OF PERSONAL REPRESENTATIVE FORM

The personal representative must not provide his or her social security number or driver's license number on the Judicial Council Form entitled "Duties and Liabilities of Personal Representative" (Judicial Council Form DE-l47 ), which is required to be filed in the proceeding.

G. REMOVAL OF A PERSONAL REPRESENTATIVE

Individuals requesting removal of a personal representative may petition the Court for an order for removal. The petitioner may use the local form entitled Petition to Remove Personal Representative (Attachment PB-4042 ). Anyone objecting to a petition to remove the personal representative may use the local form entitled Objection to Petition to Remove Personal Representative (Attachment PB-4037 ).

(Eff. 1/01/08)




Probate Rules of Court: Summary - Intro - 1 - 2 - 3 - 4 - 5 - 6 - 7
8 - 9 - 10 - 11 - 12 - 13 - 14 - 15 - 16 - 17 - 18 - 19 - 20
List of attached Probate local forms

© 2014 Superior Court of California, County of Santa Clara