Probate Of A Will

Will Probate

Probate of a Will is the administration under court supervision of a decedent’s estate as directed in his or her Will. Wills require at a minimum two court hearings and three court orders.

 Administration is the payment of debts of decedent, the payment of income and estate taxes and the transfer of legal title of property from the estate of the decedent to his or her beneficiaries or heirs.

Major procedures in the probate process are:

  • File petition with the Probate Court in the county where the decedent lived.
  • Provide notice to all heirs and all persons named in the Will of the petition.
  • Publish in local newspaper notice of petition
  • Attend court hearing and obtain letters of authority
  • Marshall assets. If real property is owned outside California, ancillary administration in the county where the real property is located is needed.
  • Prepare inventory and appraisal
  • Notice third party creditors, pay or deny creditor’s claims and if necessary sell assets of the estate.
  • File petition for hearing on settlement of accounts, approval of all actions, payment of compensation and court order to close probate.
  • File ex-parte petition for final discharge and order to close probate

 

Independent Administration of Estates Act (the “IAE Act”), Probate Code §§ 10400 et seq.

This act allows for any sale of assets without a court order. Prior to any sale notice to all heirs and all persons named in the Will is required. The steps of probate identified above are still needed.

 

 Issues Unique to Wills

Duty to Deliver

The person who has custody of the Will must produce it within 30 days of learning of the testator’s death. The custodian is liable for all damages that result from failure to deliver the will

To satisfy the duty to deliver the Will the custodian must deliver the will to the clerk of the superior court of the county in which the estate of the decedent may be administered and mail a copy of the will to the executor named in the will.

Lost Original Will, Copy Available

If the testator’s Will was last in the testator’s possession, the testator was competent until death, and the original of the will cannot be found after the testator’s death, it is presumed that the testator destroyed the Will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence.

Self Proofing Will

A Will can be admitted on petition if it is in writing and is the original. Additionally the Will shall be signed by the testator and witnessed by two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will.