If you have had a family member die and are faced with the need to probate their estate per California law, you may be asking yourself which is the proper court to probate the deceased family member’s estate. Why should you ask yourself this question (if you are not already asking it)? Well, as a part of the petition for probate that you must file in a court to start the probate process, you need to assert to the court that you are bringing the petition for probate in the proper court. Otherwise, the court may reject your petition or may dismiss it for lack of authority and power to hear the case.
The law utilizes use two different terms to describe which court is the proper court to hear a civil case, including a probate matter. The two terms are jurisdiction and venue. The term jurisdiction is simply defined as a court’s power or authority to hear a particular case based on the subject matter and the parties involved. In California, each county has its own Superior Court, which can hear cases it has jurisdiction over, including civil matters, criminal matters, probate matters, etc. Some counties have a special Probate Court or Probate Division, which is a subdivision of the Superior Court, to hear the probate of a deceased person’s estate.
Venue is really a question of convenience and is simply defined as the proper County in which a particular case should be heard, including a probate matter. A court can have jurisdiction over the case without having proper venue. This is the reason why it is important to determine ahead of time where the probate petition should be filed. Taken together and under California law, the proper court to bring a probate of a deceased person’s estate will be the Superior Court or the Probate Court/Probate Division of the County where the decedent was domiciled.
So that begs the question of what makes a person residing in California domiciled in one County versus another County? Loosely defined, a person’s domicile is the place where he or she has their true, fixed and permanent home and principal establishment. Domicile is the place where, when the person is away from it, they have the intent to return to it as their place of home. So, by example, if a person lived and worked and retired in San Luis Obispo County, owned a home in San Luis Obispo County, and returned to that home in San Luis Obispo County after travel, despite the fact that they may have property in another County or in another state, the proper County to probate their estate would be the Superior Court of San Luis Obispo County, Probate Division.
It is important to note that the rules change regarding individuals residing in another state and dying owning property located in California. Without going into detail regarding those sets of rules, it is important to realize that consideration of the location of the proper court when bringing the petition to probate a deceased person’s estate is often overlooked. This can cause confusion, frustration, and wasted time and money. Anyone facing the above circumstance should contact the Chilina Law Firm or another California attorney who practices in the area of Estate Planning, Probate, and Trust Administration.
Authored by Gregory J. Chilina and Co-Authored by Karen J. Chilina
Chilina Law Firm, a Professional Corporation, is a full-service estate planning, probate, trust administration, business law, and real property law firm that provides a wide-range of advising, transactional, and litigation services to its clients from its office located in Atascadero, California. The firm’s attorneys represent individuals and business entities in an assortment of transactional and litigation matters involving estate planning (including trusts, wills, powers of attorney, and medical directives), probate, trust administration, as well as general business law, contracts, corporate governance, land use, and real property. Chilina Law can be contacted by telephone at (805) 538-5038 or by email at info@chilinalaw.com or visit the Chilina Law Firm at www.chilinalaw.com. Chilina Law Firm is based in Atascadero, California and serves North San Luis Obispo County communities, including Santa Margarita, Atascadero, Templeton, Paso Robles, and San Miguel.
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