Who can file a petition for probate in California?

Any interested person, under Probate Code section 8000. That includes the person named executor, a beneficiary, an heir, and in some circumstances a creditor. The petition may be filed at any time after the death.

Who gets appointed if there is no will?

Probate Code section 8461 sets the order: surviving spouse or domestic partner first, then children, grandchildren, other issue, parents, siblings, issue of siblings, grandparents, and onward through more distant relations to the public administrator, creditors, and any other person.

What if the will is lost?

Section 8000 allows a petition to probate a will whether or not the will is in the petitioner's possession, and regardless of whether it is lost, destroyed, or outside California. Proving its contents is a separate evidentiary question.

When can the executor start acting?

Only once letters issue. Section 8400 states the appointment becomes effective on issuance of letters, and the order itself must warn in capital letters that it is not effective before then.

How long does the custodian of a will have to file it?

Thirty days. Under Probate Code section 8200, unless a petition for probate is filed sooner, the custodian must within 30 days of learning of the death deliver the will to the superior court clerk and a copy to the named executor. A custodian who fails is liable for all damages caused.

Who cannot serve as executor in California?

Section 8402 bars anyone under the age of majority, subject to a conservatorship of the estate or otherwise unfit, subject to grounds for removal, not a United States resident, or a surviving business partner to whose appointment an interested person objects. The residency and partner bars do not apply to someone named executor in the will.

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.

A certified mail envelope with a green return receipt card attached, resting on a hallway table. — Everything downstream is measured from the day letters issue, not the day someone died.

What the petition asks for, and who may bring it

Probate Code section 8000 is the door in. At any time after the death, any interested person may commence proceedings by petitioning the court for an order determining the date and place of death, and for appointment of a personal representative, probate of the will, or both. The section is permissive about the document: a petition may be made whether or not the will is in the petitioner’s possession, and whether or not it is lost or destroyed. Where there is no will, or none that names a willing executor, section 8461 supplies the order of priority for appointment as administrator — surviving spouse or domestic partner, then children, grandchildren, other issue, parents, brothers and sisters, and onward through grandparents and more distant relations, ending with the public administrator, creditors, and any other person. Section 8400 then governs when they may act: not until letters issue. Before that, a named executor may pay funeral expenses and preserve estate property, and nothing else.

Sources: Probate Code s.8000 - Petition commencing administration · Probate Code s.8461 - Order of priority for appointment as administrator · Probate Code s.8400 - No power to administer until letters issue · Verified 2026-08-20.

The 30-day deadline nobody knows about

Before anyone petitions, someone is already on a clock. Probate Code section 8200 provides that unless a petition for probate is filed earlier, the custodian of a will must, within 30 days after having knowledge of the testator’s death, deliver the will to the clerk of the superior court of the county where the estate may be administered, and deliver a copy to the person named as executor or, if their whereabouts are unknown, to a named beneficiary. Delivery may be personal or by registered or certified mail. The teeth are in subdivision (b): a custodian who fails to comply is liable for all damages sustained by any person injured by the failure. Whoever is eventually appointed must also be competent to serve. Section 8402 disqualifies a person under the age of majority, one subject to a conservatorship of the estate or otherwise unfit, one against whom grounds for removal exist, a non-resident of the United States, and a surviving business partner where an interested person objects.

Sources: Probate Code s.8200 - Custodian must deliver the will within 30 days · Probate Code s.8402 - Who is not competent to serve as personal representative · Verified 2026-08-21.

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

Order	Who
1–4	Surviving spouse or domestic partner · children · grandchildren · other issue
5–7	Parents · brothers and sisters · issue of brothers and sisters
8–9	Grandparents · issue of grandparents
10–12	Children and other issue of a predeceased spouse · other next of kin
13–15	Parents and issue of parents of a predeceased spouse · a qualifying conservator or guardian
16–18	Public administrator · creditors · any other person

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.

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
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 any self-dealing sale to the court — and many actions still require notice of proposed action. Asking for it later means a second petition and a second hearing.