One issue arises more than any other in California probate and I imagine in other states as well and that is that the Will cannot be found.
There can be a couple of reasons for that. The first that comes to mind, is that there never was a will. While I am not sure how the statistics are arrived out, I frequently read that over half the people never do a will. This may or may not be true. What is true, is that a lot of people do not plan for the distribution of their estates.
A second reason that the Will cannot be found, is that the decedent discarded it. Sometimes this is done intentionally and sometimes unintentionally. The family might have been under the impression that a Will had been done, but the testator (the person who died) may have revoked it and thrown it out. Sometimes it is thrown out unintentionally. The testator may have become mentally infirm and a consequence may have been throwing important documents away.
In California, we do not have a central place to record wills or trusts. Therefore it is sometimes difficult, if not impossible, to ascertain if a Will was ever done. When I receive telephone calls from people, I tell them to look everywhere. Search the house! Is there a safe deposit box? (Sometimes it is difficult to get in the safe deposit box which makes searching difficult – call a probate attorney).
A third major reason that a Will cannot be found, is that someone has torn it up. This happens when a child sees the Will and is not happy with the bequest left to him/her and/or is unhappy with the nomination of the executor.
Is there a moral to this entry? Possibly. One possible solution is to let people know where you keep the Will and provide a copy to a trustworthy person. In the event that you revoke the Will, let the person know and if you do a new Will give that person a copy of the new Will!
Our office conducts probates throughout the state of California. Many are of the garden variety type – everything is to be distributed equally to the children and the children get along fine.
However, and maybe this is because we are in California, a high percentage of the probates we handle are not like the above. This can even happen when there is a Will that says everything equally to the children and it names one of the children as the Executor. Here is where it becomes more complicated – the child named as Executor fails to start the probate proceedings. In California, as in virtually all of the states, the Executor has a duty to lodge the Will with the probate court and begin the probate proceedings. This is actually normally done by hiring a probate attorney – probate lawyer. The probate attorney will prepare the petition for probate for the Executor to review and sign. After it is signed by the Executor, the probate lawyer will file the petition and lodge the original Will with the court. In California we file it in the appropriate county.
When the Executor fails to do this, problems may arise. For example, a sibling may petition the court to be named Executor/Administrator because the person so named has refused to lodge the Will. Usually this awakens the person who has been named as Executor in the Will and ultimately that person will be named as Executor unless he/she has other problems.
The lesson to be learned is upon the death of the person who made the Will, the Executor should contact a probate attorney – probate lawyer and initiate the proceedings. In the event that the person died in California, you will want to contact a California probate lawyer – probate attorney.
