I frequently hear a comment such as this one: ‘my mother died and her Will leaves everything equally to all of us kids.   I just need help in distributing her estate.’  More often than not, this situation will result in a probate in California.  The only times it will not are if there are less than $100,000 in assets that are not in a trust, in joint tenancy and/or have beneficiary designations on them.

A Will is essentially a map for the parties and the court to follow in administering the estate.  It will include the identification of the beneficiaries; the nomination of the executor and possibly the nomination of a guardian for a minor child or children.

It should be remembered that a Will only has significance upon death. Therefore, should one become disabled or incapacitated, the Will cannot be relied upon.  On the other hand, there will still be a probate!

For answers to questions regarding probate, please contact a California probate attorney and/or a California probate lawyer.

The probate process begins with the filing of a petition for probate by someone seeking to be the executor or the administrator.  In California we use the word “Executor” when there is a Will and we use the word “Administrator” when the decedent died without a Will.  The only significant reason for there being two different words is to distinguish whether the probate involves a Will or the law of intestate succession.

Almost every day I receive a telephone call from someone informing me that someone died.  Often it is an uncle (or aunt) that died that had never been married and did not have any children.  Who has priority in this situation to serve as administrator?

Let us back-up and realize that the California probate code contains a variety of statutes that answer a variety of questions.  To answer the question of who has priority to be the administrator, we go to probate code section 8461 which reads as follows:

            “Subject to the provisions of this article, a person in the following relation to the decedent is entitled to appointment as administrator in the following order of priority:

                        (a) Surviving spouse or domestic partner as defined in Section 37.

                        (b) Children.

                        (c) Grandchildren.

                        (d) Other issue.

                        (e) Parents.

                        (f) Brothers and sisters.

                        (g) Issue of brothers and sisters.

                        (h) Grandparents.

                        (i)  Issue of grandparents.

                        (j) Children of a predeceased spouse or domestic partner.

                        (k) Other issue of a predeceased spouse or domestic partner.

                        (l) Other next of kin.

                        (m) Parents of a predeceased spouse or domestic partner.

                        (n) Issue of parents of a predeceased spouse or domestic partner.

                        (o) Conservator or guardian of the estate acting in that capacity at the time of death who has filed a first account and is not acting as conservator or guardian of any other person.

                        (p) Public administrator.

                        (q) Creditors.

                        (r) Any other person.”

Thus, you can see that there is an answer as to who should be named the administrator for most situations.  Well what if two people at the same level (for example, two children) wish to be the administrator?

Probate Code Section 8467 provides the answer to that issue:

            “If several persons have equal priority for appointment as administrator, the court may appoint one or more of them, or if such persons are unable to agree, the court may appoint the public administrator or a disinterested person in the same or the next lower class of priority as the persons who are unable to agree.”

Ideally, family members will agree, but otherwise the court has the power to make the decision!