By Corcoran Smith Law Corp. · Published 2026-08-20 · Updated 2026-09-21

Opening Probate: The Petition and Letters

To open a California probate, an interested person petitions the court under Probate Code section 8000. The court determines the date and place of death and appoints a personal representative. Nobody can act for the estate until letters actually issue under section 8400.

What the petition asks for, and who may bring it

The 30-day deadline nobody knows about

Who the custodian usually is

Most often the drafting attorney, a bank holding a safe deposit box, or the family member who was handed the envelope. All of them are custodians for this purpose, and none of them is usually aware of the deadline. If a relative is sitting on the original will, section 8200 is the answer to the question of whether they are entitled to.

Priority for appointment, in order

This order applies where there is no executor named, or the named executor cannot or will not serve. An executor named in the will takes precedence over it. Priority to serve is not a right to inherit: where there is no will, the intestate succession rules decide who inherits.

What the petition has to establish

• The date and place of death — the order determines both
• That this is the proper county — domicile under §7051, or location of property for a non-domiciliary
• Who should be appointed, and their priority or the executor’s nomination
• Whether the will is admitted, where there is one — see the formal requirements for a valid California will
• Whether independent authority is sought under the IAEA
• Whether bond is waived — see the bond

What happens between filing and letters

The hearing is set 15 to 30 days out, or 30 to 45 where the petitioner asks at filing, and the court cannot shorten the notice period. Notice must be served on interested persons and published before the hearing. In practice the court’s own calendar often sets the real date. The full timeline is set out here.

The mistake that costs the most time

People named as executor routinely begin acting on the day of the funeral — closing accounts, selling a car, letting a relative move in. Section 8400 says plainly that they have no power to do any of it. Acts taken before letters can have to be unwound, and they hand a later opponent something to point at. The two things that are permitted before appointment are narrow and specific: funeral expenses, and steps necessary to maintain and preserve the property.

Should you ask for independent authority?

Almost always, and it costs nothing to request in the original petition. Full authority under the Independent Administration of Estates Act lets the representative take most administration actions without returning to court for prior approval, which is the single largest saving of time available. It does not remove oversight — section 10501 still reserves compensation, accounts, distribution and generally self-dealing sales to the court, subject to statutory exceptions including the narrow section 10501(c) exception — and many actions still require notice of proposed action. Asking for it later means a second petition and a second hearing.

Related: the administration process end to end, what the representative must do once appointed, how long each stage takes, and whether you can skip probate entirely.