Probate is a legal process that validates a will (if the decedent had a will), appoints a personal representative to administer the estate, and oversees the distribution of the decedent's assets. If a decedent died without a will, his or her assets will pass according to California law.
Probate includes the following stages:
- A court determines the validity of the will of a deceased person, or that a person died without a valid will ("intestate").
- A court appoints a personal representative (who will be known as an executor or an administrator, depending upon whether the person died with or without a will).
- The personal representative notifies known creditors of the death and the time limits for making a creditor's claim.
- The property of a deceased person is identified, inventoried, and appraised.
- Outstanding debts and taxes are paid.
- The remaining property is distributed as outlined in the will, or according to California law.
Typically, if there is a will, it names an executor who serves as a personal representative. The executor is in charge of estate management and following probate procedure. However, until the executor is formally appointed by the court, this person has no authority to act as personal representative.
If there is no will, or if no executor is named in the will, or if none of the named executors are able or willing to serve, the probate court appoints an individual known as an administrator to act as personal representative.
In California, probate hearings are held in the Probate Department of the Superior Court in the county in which the deceased person was living when they died.
It is possible for someone to file an objection to a will. When this happens, a process known as a will contest begins. In order for somebody to initiate contested probate, they must hold a stake in the outcome of the will. Although loosely defined, examples of such individuals are:
- A spouse or child who was not included in the will.
- A child who receives a less equitable share of the estate than a sibling.
- An heir or beneficiary who benefited more from an earlier will.
Common reasons that a court will find a will to be invalid include:
- The will does not adhere to state law.
- The will was forged.
- The decedent was of an unfit mental state when the will was executed.
If you decide to initiate a probate contest, we recommend that you hire an experienced probate attorney. The lawyers at Vaught & Boutris will be happy to discuss your options with you.