Every week of the year I get at least one telephone call, and usually it is more than one, that goes something like this: “My dad died and me and my sister were left out.  What can we do?” There are many variations of the same concern which is that the caller is not getting from the Will what he thought he should.  (For purposes of this blog entry, I am going to use the word “Will” to include “Trust”).

In California, people are generally free to leave their estate to whomever they wish.  There are some exceptions.  Parents have support obligations for their minor children; people may have legal obligations, including from divorces, to leave certain of their assets to certain people, etc.

However, assuming no minor children and no debts, an estate can be left to anyone.  It does not have to be left to the children or to the closest relatives.  This makes for an interesting situation when an individual gets older and either changes his Will or does a new Will leaving everything to a caregiver or to some new friend or charity that he would never have left his estate to in his earlier years.

This might be a good time to put in my two cents.  Here it goes.  Often people either rewrite their Wills or are susceptible to different types of people because they see these people more (frequently much more) than they see their own family members.  They rationalize that these people are here for me, they are helping me out, and they can use the money.  Obviously, there are people who prey on the elderly.  Chances of this occurring dramatically decrease when you stay in contact with your parents and relatives.

When people are in contact with their family, more often than not, they are aware if someone is taking advantage of their relative.  If that is the case, there are plenty of ways to put a stop to the situation.

Now back to the law!  There are essentially a couple of ways to contest a Will.  The first is to allege that the statutory formalities of Will execution were not complied with by the decedent.  This is always the first thing that I look for when I see the Will (or Trust) that is being complained about.  Sometimes, it provides me with the needed opening.

A second way to contest a Will is to allege that the person who signed it was subject to undue influence.  Essentially, you are arguing that he was to persuaded to sign this Will by someone and he would have done something differently, but for this influence.  The burden of proof is on the person/entity contesting the Will to persuade the court that there was undue influence.

A third way to challenge a Will is to demonstrate that the testator was incompetent when he signed the Will.  This can frequently be established by medical records.  Once again the burden of proof is on the person/entity contesting the Will.

Mistake of fact is a fourth way of challenging a will.  The individual challenging must prove that the testator thought something was one way when in fact it was another.  For example, he writes in his Will that he is not leaving something to his daughter because he loaned her $100,000 which was never paid back.  However, the daughter can prove that not only did she pay back the $100,000, she paid it back with interest before he wrote the Will!

A fifth way to successfully challenge a will is to prove fraud.  Essentially, one is arguing that the person distributed his estate in the way he did because someone lied to him.  As with the other methods, it is not enough to simply allege “fraud”; you must prove it.

As someone who gets a lot of calls on this subject, I have to make decisions fairly quickly. Otherwise I would spend a good part of the day on the telephone hearing people’s individual stories and not earning a living.  I have trained myself to ask questions that help me determine whether any of the above comes in to play.  In other words, do I think a court would determine that the caller was wronged; and, if they were wronged, is it over enough money to make sense to begin representing the client.  When I think the answers are “yes”, then I choose to work with the caller.  Otherwise, I have to tell the person that I am the attorney for him.

You often hear that probate is so time consuming. I am here to tell you that it is not the fault of the system that probate sometime takes a year or more. Most probates we start end within a year. Many are as quick as eight months; even that is misleading, as the administrator/executor often has full control of the estate within 45 days or less of the filing of the petition for probate.

It is infrequent that the probate process is the cause for a lengthy probate. Sure, in California a probate takes some time. It takes time because the governor and the legislature, in passing laws have determined that there should be some “checks and balances” in the system. The checks and balances are in the nature of making sure that any individual or entity that has a potential claim to any part of the estate has an opportunity to be heard and to make a claim.

Let’s look at the timeline of a probate in California. It begins with the filing of a petition for probate. In the petition, someone is seeking (“petitioning”) to be made the executor/administrator of the decedent’s estate. If the decedent left a Will, it would be generally be the person nominated to be the executor in the Will. If there is not a Will, it could be a relative (more about priority of administrators in a future entry).

The petition will be set for a “hearing” approximately one month from the date it was filed. The reason for setting it out that far, is so that all people and entities who are entitled to have notice, receive notice with enough time to react. In the event they oppose the petition, they can attend the hearing and/or hire an attorney to attend on their behalf.

Here, we have two potential reasons for a probate taking longer than it ideally should. First, in the event that everyone who was entitled to notice did not receive notice, the court will continue the “hearing” for a month. That is to give the petitioner and his/her attorney time to properly serve everyone.

Second, someone may object to the person seeking to be made the executor/administrator actually becoming the executor/administrator. This happened to me today in a probate that I am handling. We submitted a Will naming my client, the decedent’s minister, as her executor. Her son has retained an attorney and is contesting the validity of the Will. The court has continued the hearing date for four weeks.

It is possible in this case that something can be worked out by the next hearing date; however, in the event that it is not worked out, a trial date will be set to determine the validity of the decedent’s Will. This could cause the probate to drag on for months.

When everyone is on the same page, the court appoints the person petitioning to be the administrator/executor and shortly thereafter issues letters testamentary. From the date of the issuance of letters testamentary, creditors of the estate have four months to file a creditor’s claim. It is during this time period that the assets of the estate have to be appraised by the court appointed appraiser. This needs to be done in a specific format that can cause delays if not done properly.

At the end of the four months creditors claim period, the estate is in a position to be closed. It is at this point that a petition for final distribution is filed. Once again it is set for hearing a month or so later.

The petition is not a “slam dunk” unless everything has been done correctly and to the court’s satisfaction. Frequently inexperienced attorneys will not prepare the accounting to the court’s satisfaction. This will cause the court to issue a continuance. And sometimes another continuance if things were still not done properly. This is where working with experienced probate attorneys can save months off the time of the probate.

In summary, probate is going to take some time. A probate in which all of the heirs are “on the same page” and involving an experienced probate attorney is an efficient process. In those situations, we often hear comments to the effect of “that was easier than we thought it would be.”