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What Occurs During The Probate Of A Will?

Every will must go through the probate process even if no one challenges the will or claims that it was induced by fraud, not properly witnessed, the result of undue influence or otherwise defective.

Furthermore, one might claim that a subsequent will superseded the one offered for probate. If disputed this would require a will contest. Such contests complicate and add expense to the probate process because they entitle the attorney to extraordinary fees.

This scenario rarely arises in a properly planned estate. In a properly planned estate, no legitimate basis should arise for challenging the will. After all, an attorney has met with the decedent and drafted the will properly and the will has been properly witnessed.

Most of the time, the involvement of an attorney can help to avoid or resolve any issues regarding the capacity of the decedent at the time the will was executed without the need for a costly will contest.

What Happens When Someone Objects To A Will?

In those cases, a formal objection is filed in court. Alternately, he may file an opposing petition for issuance of letters.

The matter is then heard as a “Contested Proceeding” in the probate. This means it is essentially treated as a civil trial. It goes through a briefing sequence and a settlement conference.

If the matter cannot be resolved through negotiations, the court will conduct a hearing during which the parties present witnesses and evidence to support their claims. Afterwards, the court makes a determination as to whether there was a basis for contesting the will or not.

This becomes a mini-trial held within the probate department, with special procedural rules.

What Is The Basis For A Contested Will?

There are several reasons, a will may be contested.

One of the primary reasons is a claim that the person executing the will lacked capacity. This means he didn’t have the mental competence necessary to execute a will.

Another reason a will can be contested is a claim that it was not properly witnessed or that it was induced by undue influence. For instance, it can be a basis for challenge if a child of a decedent took his parent to an attorney and used improper influence to convince him to give this child his entire estate, excluding the other kids.

A will can also be challenged on the basis that the person did not understand he was executing a will. For instance, a document may have been placed in front of the decedent who was told it was something other than a will. Perhaps he thought it was a lease or a bank statement. Therefore, the person executed it not knowing it was a will.

Also, a basis for contest could be that there is a subsequently executed will that supersedes the offered will.

What Happens If There Is No Will?

A person who dies without leaving a will is deemed to have died “intestate.” This means that his or her property is still probated. However, it will pass according to the intestacy statutes of the state of California, depending on such things as whether the person was married or not, whether he had children or not, whether he was survived by parents or not, whether he had siblings or not, and whether the property was community or separate at the time of death.

The rules relating to intestate succession are somewhat involved. A person will typically review them with his attorney when talking about initial probate representation.

No single intestacy rule applies to everyone. Therefore, if the person dies with a spouse, then all of the community property passes to the spouse. If he died with a spouse and children, the separate property passes partly to the spouse and partly to the children.

If a person dies without a spouse, typically, part of the property passes to parents (if either survives), and part of the property passes to the children.

What Happens If A Will Is Missing Or Cannot Be Found?

The process to prove up a missing will is somewhat complicated and requires proof that someone saw the will in existence, believes the decedent didn’t destroy the will to revoke it, and knew the terms of the will.

This is certainly a more involved type of probate proceedings. It is also more expensive to conduct because it results in extraordinary fees for the attorney.

Proving up a missing will is awkward, expensive, and difficult. Therefore, a person should plan so his heirs don’t have to go through the process. Ultimately, if the court concludes that there was no will or that the terms can’t be proven, the estate will be distributed according to the intestate succession laws.

How Can Someone Find Out If A Will Exists?

Initially, look through the decedent’s papers including any safety deposit box and the files of the decedent.

When we do an estate plan for a person, we deliver a binder that fits into a sleeve and is marked “Trust Estate” or “Trust Plan.” These are easily identifiable as estate plan documents. We direct them to put those documents in a secure location in the house, and, if necessary, to acquire a fireproof safe.

Another way to find a will is to inquire whether relatives have a copy or have seen a copy or the original.

If someone knows who the attorney for the decedent was, he can go to the attorney and ask to obtain a copy of any will that he drafted. Typically, the attorney retains a copy as a record in his practice.

Ultimately, if a will cannot be found, after going through a search, the decedent probably died intestate or will be treated by the court as having died intestate. As such, the property will pass according to the statutory intestacy rules, depending on what kind of property the decedent owned and who survived the decedent.

For more information on Disputed Wills, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (916) 635-0302 today.

California’s Estate Planning Essentials