Code Section Group

Probate Code - PROB

DIVISION 7. ADMINISTRATION OF ESTATES OF DECEDENTS [7000 - 12591]

  ( Division 7 enacted by Stats. 1990, Ch. 79. )

PART 2. OPENING ESTATE ADMINISTRATION [8000 - 8577]

  ( Part 2 enacted by Stats. 1990, Ch. 79. )

CHAPTER 1. Commencement of Proceedings [8000 - 8007]
  ( Chapter 1 enacted by Stats. 1990, Ch. 79. )

8000.
  

(a) At any time after a decedent’s death, any interested person may commence proceedings for administration of the estate of the decedent by a petition to the court for an order determining the date and place of the decedent’s death and for either or both of the following:

(1) Appointment of a personal representative.

(2) Probate of the decedent’s will.

(b) A petition for probate of the decedent’s will may be made regardless of whether the will is in the petitioner’s possession or is lost, destroyed, or beyond the jurisdiction of the state.

(Enacted by Stats. 1990, Ch. 79.)

8001.
  

Unless good cause for delay is shown, if a person named in a will as executor fails to petition the court for administration of the estate within 30 days after the person has knowledge of the death of the decedent and that the person is named as executor, the person may be held to have waived the right to appointment as personal representative.

(Enacted by Stats. 1990, Ch. 79.)

8002.
  

(a) The petition shall contain all of the following information:

(1) The date and place of the decedent’s death.

(2) The street number, street, and city, or other address, and the county, of the decedent’s residence at the time of death.

(3) The name, age, address, and relation to the decedent of each heir and devisee of the decedent, so far as known to or reasonably ascertainable by the petitioner.

(4) The character and estimated value of the property in the estate.

(5) The name of the person for whom appointment as personal representative is petitioned.

(b) If the decedent left a will:

(1) The petitioner shall attach to the petition a photographic copy of the will. In the case of a holographic will or other will of which material provisions are handwritten, the petitioner shall also attach a typed copy of the will.

(2) If the will is in a foreign language, the petitioner shall attach an English language translation. On admission of the will to probate, the court shall certify to a correct translation into English, and the certified translation shall be filed with the will.

(3) The petition shall state whether the person named as executor in the will consents to act or waives the right to appointment.

(Enacted by Stats. 1990, Ch. 79.)

8003.
  

(a) The hearing on the petition shall be set for a day not less than 15 nor more than 30 days after the petition is filed. At the request of the petitioner made at the time the petition is filed, the hearing on the petition shall be set for a day not less than 30 nor more than 45 days after the petition is filed. The court may not shorten the time for giving the notice of hearing under this section.

(b) The petitioner shall serve and publish notice of the hearing in the manner prescribed in Chapter 2 (commencing with Section 8100).

(Enacted by Stats. 1990, Ch. 79.)

8004.
  

(a) If appointment of the personal representative is contested, the grounds of opposition may include a challenge to the competency of the personal representative or the right to appointment. If the contest asserts the right of another person to appointment as personal representative, the contestant shall also file a petition and serve notice in the manner provided in Article 2 (commencing with Section 8110) of Chapter 2, and the court shall hear the two petitions together.

(b) If a will is contested, the applicable procedure is that provided in Article 3 (commencing with Section 8250) of Chapter 3.

(Enacted by Stats. 1990, Ch. 79.)

8005.
  

(a) At the hearing on the petition, the court may examine and compel any person to attend as a witness concerning any of the following matters:

(1) The time, place, and manner of the decedent’s death.

(2) The place of the decedent’s domicile and residence at the time of death.

(3) The character and value of the decedent’s property.

(4) Whether or not the decedent left a will.

(b) The following matters shall be established:

(1) The jurisdictional facts, including:

(A) The date and place of the decedent’s death.

(B) That the decedent was domiciled in this state or left property in this state at the time of death.

(C) The publication of notice under Article 3 (commencing with Section 8120) of Chapter 2.

(2) The existence or nonexistence of the decedent’s will.

(3) That notice of the hearing was served as provided in Article 2 (commencing with Section 8110) of Chapter 2.

(Enacted by Stats. 1990, Ch. 79.)

8006.
  

(a) If the court finds that the matters referred to in paragraph (1) of subdivision (b) of Section 8005 are established, the court shall make an order determining the time and place of the decedent’s death and the jurisdiction of the court. Where appropriate and on satisfactory proof, the order shall admit the decedent’s will to probate and appoint a personal representative. The date the will is admitted to probate shall be included in the order.

(b) If through defect of form or error the matters referred to in paragraph (1) of subdivision (b) of Section 8005 are incorrectly stated in the petition but actually are established, the court has and retains jurisdiction to correct the defect or error at any time. No such defect or error makes void an order admitting the will to probate or appointing a personal representative or an order made in any subsequent proceeding.

(Enacted by Stats. 1990, Ch. 79.)

8007.
  

(a) Except as provided in subdivision (b), an order admitting a will to probate or appointing a personal representative, when it becomes final, is a conclusive determination of the jurisdiction of the court and cannot be collaterally attacked.

(b) Subdivision (a) does not apply in either of the following cases:

(1) The presence of extrinsic fraud in the procurement of the court order.

(2) The court order is based on the erroneous determination of the decedent’s death.

(Enacted by Stats. 1990, Ch. 79.)

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