IF I AM NAMED AS EXECUTOR IN A WILL, DO I HAVE TO SERVE?
No. If you choose not to serve, the Court will probably appoint the alternate executor to be the personal representative. If there is no alternate executor, or if that person doesn’t want to serve, the Court will appoint someone to serve. The Court usually appoints a capable family member or an independent professional fiduciary.
If you decide to be the personal representative, you can resign at any time. But, you may have to give an “accounting” to the Court for the time you served.
WHAT IF SOMEONE OBJECTS TO THE WILL?
If someone files an objection to the Will, or produces another Will, a “Will Contest” has begun. Will contests are not uncommon, but few people actually win one. Still, they can cost a lot of money and time.
WHO CAN CONTEST A WILL?
Only a person with “standing” can contest a Will. This means the person must have a personal financial stake in the outcome.
Examples of people with standing to contest a Will are:
- A child or spouse who was cut out of the Will.
- A child who receives one third of the estate if a sibling receives two thirds.
- Children who feel that the local charity should not get all the parent’s assets
- Anyone who was treated more favorably in an earlier Will.
Sometimes, there is a Will contest because someone wants a different person, bank, or trust company to serve as personal representative for the estate, or as a trustee of trusts created by the Will.
WHEN CAN A WILL BE CONTESTED?
Most challenges to Wills are by potential heirs or beneficiaries who got little or nothing. Will contests must be filed in Probate court within a certain number of days after receiving notice of the death, or petition to admit the Will to probate, or issuance of Letters Testamentary to a personal representative.
Examples of reasons to challenge a Will are:
- There is a later Will which, if valid, would replace the earlier Will.
- The Will was made at a time the decedent was not mentally competent to make a Will.
- The Will was the result of fraud, mistake or “undue influence”.
- The Will was not properly “executed” (signed by the decedent).
- The so-called Will is actually a forgery.
- For some other reason (such as a pre-existing contract) the Will is invalid.
If there is a Will contest, you should hire an experienced lawyer. The probate court may invalidate all of the Will or only the challenged portion. If the entire Will is found invalid, the proceeds will probably be distributed according to the state laws of intestacy, unless there is a prior revoked Will that is revived and admitted to probate.
WHAT IF THERE IS NO WILL?
If a person dies without a Will (known as dying “intestate”), the probate court appoints a personal representative (known as an “administrator”). The major difference between dying testate and dying intestate is that an intestate estate is distributed according to state law (known as “intestate succession”). A testate estate is distributed according to the instructions left by the decedent in his or her Will.
WHAT HAPPENS IF WE CANNOT FIND A WILL?
If a Will is lost or cannot be found, the specific facts and circumstances and state law will determine what happens. For instance, if the Will is missing because the decedent intentionally revoked it, an earlier Will or the laws on intestate succession would determine who gets the decedent’s estate.
Or, if a Will is missing because it was stored in a bank vault destroyed in a fire, the probate court may accept a photocopy of the Will (or the lawyer’s draft or computer file), if there is evidence that the decedent properly signed the original.
WHAT IF THE DECEDENT OWNED LAND IN MORE THAN ONE STATE?
The probate laws of the state in which the decedent was a permanent resident determine who will get the decedent’s personal property (wherever it was located) and the decedent’s real property located within the state. This is why probate is almost always filed in the decedent’s home state.
If the decedent owned real property in another state, that state’s laws determine how the real property will be distributed. There will be probate in each state where there is real property, in addition to the home state. Each state has its own method for distributing the decedent’s real property. Even if there is a Will, the Will is first admitted to probate in the home state, then it must be submitted to probate in each state in which the decedent owned real property.
The extra probate procedure is called “ancillary probate.” Some states insist upon the appointment of a personal representative who is a local resident to administer the property in that state.
HOW CAN I FIND OUT IF THERE WAS A WILL?
First, check with the Probate Court in the county of the state where the decedent lived. If the Will was filed, it will likely be available to the public for viewing. And, you can purchase a copy.
But many people, even with substantial assets, die without a Will. And, if the decedent held all property through a living trust or a joint ownership arrangement, there may be no need to probate the Will.
WHAT IF SOMEONE DIES AND I HAVE THE WILL IN MY POSSESSION?
The law says you must “deposit” the Will with the superior court in the county where the decedent lived, even if there will be no probate. There is a fee to deliver the Will to court. See the Fee Schedule – Probate Fees for current fee.
But, the court does not accept Wills for persons who are still living.
Disclaimer: The intent of the information given here is to provide the layperson with a general understanding of Trust/Probate law procedures. The information within this website is not comprehensive and is not intended to serve as a substitute for independent research of the law or an attorney. Most of the information found here can be found directly on CA court websites. RobertGraf.com is not intended to take the place of an attorney or other professional counsel.
Additional Questions contact Robert Graf directly @ 818.399.9455 no cost or obligation.