Divorce and the Initiation of Probate Proceedings in Probate Court

At the Orange County Law Office of David P Schwarz we can assist in initiating probate proceedings for our divorce clients if the time comes where a spouse has died. Please contact our office at 949 735 9266 or via the web. We can also be contacted via email at dpslaw66@gmail.com

A Divorce attorney can initiate Probate proceedings are by filing a petition for appointment of a personal representative and, in testamentary cases, for probate of decedent's will.

The Judicial Council Form “Petition for Probate” must be used to commence the proceedings … whether decedent died testate or intestate and whenever a special administration is requested.

Modification and use of attachments: As with all official forms, the petition may be adapted to account for any situation; i.e., language may be added or deleted to accommodate special circumstances, such as the probate of a “lost will”or a California statutory will.

A Divorce Lawyer will Also assist you in creating the form which contemplates various “attachments.” Additional information or declarations may have to be affixed, keyed to the form by appropriate item reference (e.g., “Attachment 3d(2)” for beneficiaries' waiver of bond or “Attachment 3d(3)” for waiver of bond by heirs.

Joinder of § 13650 set-aside: The petition for probate may be, and often is, filed and served with a spousal or domestic partner set-aside petition.

The official form Spousal or Domestic Partner Property Petition recognizes that such joinder may be requested. However, the Notice of Petition to Administer Estate, which is published and served when the probate petition is filed, may not be used by itself to give notice of such joinder.

An Orange County Divorce Lawyer will let you know that anyone has Standing to File Petition—Any “Interested Person”: Any “interested person” may petition the court for appointment of a personal representative or probate of decedent's will, or both. The petitioner need not necessarily be a named executor or eligible administrator. “interested persons” include anyone having an interest in estate that may be affected by probate proceeding

Statutory list of “interested persons”: The terms “interested person” and “person interested in the estate” are used by the Probate Code in varying contexts, ordinarily with reference to the statutory definition set forth in Prob.C. § 48. Section 48 defines “interested person” to include:

(1) [3:83.2] Heirs, beneficiaries and creditors: Heirs, devisees, children, a spouse (or registered domestic partner, see Fam.C. § 297.5(c)), creditors, beneficiaries, and any other person having a property right in or claim against a trust estate or the estate of a decedent that may be affected by the particular proceeding (see 3:84.1 ff.) are all “interested persons.” [Prob.C. § 48(a)(1); Estate of Sobol (2014) 225 CA4th 771, 781-782, 170 CR3d 569, 577-578]

(a) [3:83.3] “Beneficiary”: “Beneficiary” is broadly defined by the Code to mean a person to whom a donative transfer of property is made or that person's successor in interest (Prob.C. § 24), and specifically:

(2) [3:83.4] Qualifying personal representatives: Any person having priority for appointment as personal representative (¶ 3:353) is also an “interested person.” [Prob.C. § 48(a)(2)]

(3) [3:83.5] Fiduciary representatives: And fiduciaries acting on behalf of “interested persons” are themselves “interested persons.” [Prob.C. § 48(a)(3)]

b. [3:84] Limitation—determined by context of proceeding: However, whether a particular individual in a specific case is an “interested person” may vary with the underlying circumstances; i.e., a party may qualify as an “interested person” for purposes of one probate proceeding but not for purposes of another. Thus, the meaning of “interested person” is left to the court's case-by-case determination, based on the particular purposes of and issues involved in the proceeding at hand. [Prob.C. § 48(b); Estate of Sobol(2014) 225 CA4th 771, 781-782, 170 CR3d 569, 578; see Lickter v. Lickter(2010) 189 CA4th 712, 732, 118 CR3d 123, 138§ 48(b) not an independent basis for determining who is an interested person but, instead, “merely recognizes that whether a particular person will qualify as an interested person under the definition set out in [Prob.C. § 48(a)] may vary from time to time depending on the particular purposes of, and matter involved in, any proceeding” (internal quotes omitted); see also Arman v. Bank of America, N.T. & S.A. (1999) 74 CA4th 697, 703, 88 CR2d 410, 414—daughter of deceased individual named in testator's will as intended trustee of future charitable trust lacked standing to petition for appointment of successor trustee (Attorney General only party with standing to represent intended beneficiaries of charitable trust); Gregge v. Hugill (2016) 1 CA5th 561, 571, 204 CR3d 842, 850—vested trust beneficiary with pecuniary interest in proceeding had right to challenge trust amendment on undue influence and lack of capacity grounds, regardless of attempt by nonparty beneficiary to circumvent that right by disclaimer]

(1) [3:84.1] Proceeding must affect alleged “interested person's” property right in or claim against estate: “Interested person” standing and the merits of a particular case are very closely tied. Consequently, it is often necessary to come to terms with the substantive claim before the standing issue can satisfactorily be resolved.

A person cannot be characterized as “interested” in a particular proceeding under § 48(a) (and thus cannot have standing to pursue that proceeding) unless that person has a “property right in or claim against a trust estate or the estate of a decedent which may be affected by th[at] proceeding.” Stated otherwise, to be an “interested person” for purposes of instituting or participating in a particular proceeding under Prob.C. § 48, a person “must have an interest that may be impaired, defeated, or benefited by the proceeding.” [Lickter v. Lickter, supra, 189 CA4th at 717, 728, 118 CR3d at 127, 135 (emphasis added)—§ 48(a)(1) 's closing phrase “having a property right in or claim against …” applies to all categories of persons named in § 48(a)(1); see Estate of Sobol, supra, 225 CA4th at 782, 170 CR3d at 578 (discussed at ¶ 15:39, 15:64)]

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