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.

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!

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.”