Opening a Probate in California

In order to open probate in California, the petitioner will need to file a petition in the appropriate superior court. The petition will allege various details about the decedent. For example, the petition will state when the decedent passed away, the decedent's residence when they passed away, what assets the decedent had, did the decedent have a will or not, which relatives survived the decedent, etc. The allegations found in the petition will be received as evidence if uncontested. Probate Code §1022.

However, if the petition is objected to, then the petition may not be received as evidence. Evangelho v Presoto (1998) 67 CA4th 615, 620. Instead an evidentiary hearing, essentially a trial, is needed to resolve the matter.

A recent unpublished appellate opinion focused on the appointment of a personal representative in what was ostensibly an uncontested matter.

"On August 24, 2021, M. Nicole Fore (Fore) filed a petition for probate for authorization to administer under the Independent Administration of Estates Act (the petition) in connection with Estate of Michael Derik Marxsen (decedent). According to the petition, decedent passed away on August 9, 2021, leaving a will dated August 4, 2021. The petition reflects that Fore was decedent's fiancée, and that appellant Sheryl L. Benevento (Benevento) is decedent's mother. On October 14, 2021, the court approved the petition, appointing Fore as administrator with will annexed and fixing a bond at $110,886. Letters of administration with will annexed were issued the next day.

Benevento's appeal is from the October 14, 2021 order appointing Fore as administrator with will annexed (the Order). Her appellate brief, however, does not identify or directly assert any claim of error by the probate court with respect to the issuance of the Order."

The crux of Ms. Benevento's appeal was that she did not timely file an objection to Ms. Fore's appointment as personal representative. A footnote describes this in detail:

"Under the heading "Statement of the Case" (capitalization omitted), Benevento states in her appellate brief that she and other family members appeared in court on October 14, 2021, "only to find [the case] was removed from the schedule since the presiding judge had made a ruling at 4pm on October 13, 2021." She does not argue in her appellate brief that the court erred in this respect. The record reflects that the court issued a tentative ruling on October 13 granting the petition, it received no objection by 4:00 p.m. that day, and that it therefore adopted the tentative ruling. (See Cal. Rules of Court, rule 3.1308(a)(1) [authorizing superior courts to adopt tentative ruling system under which, if a tentative ruling is posted "by no later than 3:00 p.m. the court day before the scheduled hearing. . . [and i]f the court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party's intention to appear"].)"

If Ms. Benevento had timely objected to Ms. Fore's appointment as personal representative, it is almost certain that Ms. Fore would not have been appointed personal representative on October 14, 2021. The reason being is that Ms. Fore's petition would have been contested and thus not be received as evidence per Evangelho. However, since Ms. Benevento did not timely file her objection, the court was obligated to receive Ms. Fore's petition as evidence and appointed Ms. Fore as personal representative on October 14, 2021.

Estate of Michael D. Marxsen, San Benito County Superior Court # PR 210006

Filing a Timely Creditor's Claim

All people pass away owing some kind of debt. Some estates have large debts while others have small debts. If an estate is probated, the probate process provides an opportunity to file a claim against the decedent's estate. Each creditor is tasked with filing their claim in a timely manner. Otherwise their claim can be time-barred even if their claim is valid.

A recent published appellate opinion addressed the issue of when a creditor's claim is timely filed.

Estate of Holdaway (2019) _______ CA4th _______

"The decedent died on June 13, 2013. On June 11, 2014, Everett filed a petition for probate and creditor's claim seeking $90,875. The claim was based on (1) four loans to the decedent, totaling $25,200; (2) unspecified "in-home services" she provided to the decedent, valued at $24,000; (3) unspecified "in-home expenses" of $17,675 she incurred on the decedent's behalf; and (4) "certain property" owned by Everett in the possession of the decedent at the time of his death, valued at $24,000.

After five continuances requested by Everett's counsel, in March 2015 the trial court issued an order to show cause why the petition should not be dismissed for failure to prosecute. On May 7, 2015, the trial court ordered the case "dismissed without prejudice as to [the] entire action" for failure to prosecute.

In December 2015, Everett filed another petition for probate with the trial court under the same case number as her previous petition. In May 2016, Holdaway, who is the decedent's son, filed a competing petition for probate. The competing petition stated that the decedent had died testate, and attached an attested and subscribed will that left all the property to a family trust he had established. The will nominated the decedent's wife or, in the alternative, Holdaway, as executor. In October 2016, the trial court granted Holdaway's competing petition, dismissed Everett's petition, appointed Holdaway as the personal representative of decedent's estate, and admitted the will. There were no objections to these rulings, and the court noted that the dismissal of Everett's petition was "by agreement" of the parties.

On March 10, 2017, Holdaway formally rejected Everett's creditor's claim against the estate. On May 19, 2017, Everett filed her complaint challenging the rejection, seeking damages in the amount of the claim, $90,875.

Holdaway demurred to the complaint, arguing among other things that it was time barred under Code of Civil Procedure section 366.2, and that in any case it was barred by other statutes of limitations. The trial court sustained Holdaway's demurrer without leave to amend."

On appeal, the appellate court reversed the trial court holding that only the estate's personal representative had the power to reject Ms. Everett's creditor claim. Since the personal representative did not reject the claim until March 10, 2017, Ms. Everett had 90 days thereafter to file her lawsuit against the estate.

The fact that Ms. Everett initiated her lawsuit years after the decedent's death was immaterial. Normally a claim must be filed against a decedent's estate within 1 year of death. Code of Civil Procedure section 366.2. In this case though, since Ms. Everett had filed her creditor's claim within 1 year of the decedent's death, the statute of limitations was tolled until it was rejected by the personal representative on March 10, 2017. Following the personal representative's rejection, Ms. Everett had 90 days to commence a lawsuit. She timely did so by filing her complaint on May 19, 2017.

How does Probate Work in California?

The term "probate" is often (rightfully or wrongfully) used in a negative connotation. For reference, probate is the judicial transfer of assets from a dead person, known as the decedent, to their heirs or beneficiaries. Typically people opt to write a trust whereby their estate will not be subject to the probate process when they pass away. While there are valid reasons to avoid probate, e.g. it is costly and time-consuming, an estate that must be probated does not result in irreparable harm. In an effort to dispel any myths or half-truths involving the probate process, the following is a brief explanation of it.

Probate can be splintered into three segments, (1) collection and appraisal of assets, (2) payment of debts and (3) distribution of the balance of the estate.

1. Collection and Appraisal of Assets

The first step is for a person to be appointed personal representative by the court to administer the estate. The personal representative can either be somebody nominated in a will, the executor, or they can be the decedent's next of kin if they wrote no will, the administrator. 

Once appointed, the personal representative has the authority to gather the decedent's assets. For example, if the decedent had a bank account, the personal representative would go to the bank and transfer it to an estate account.

When the personal representative has gathered all the assets, they can then appraise such assets. For some assets, the personal representative can appraise the asset themselves, e.g. a bank account. For other assets, the personal representative will need the assistance of a probate referee, e.g. real estate.

When the personal representative has completed collecting and appraising assets, they submit an inventory and appraisal of the decedent's estate to the probate court. 

2. Payment of Debts

Invariably the decedent will have some form of debt when they pass away. This can take the form of a credit card bill, a utility bill, a mortgage, a child support judgment, a tax lien, etc. The personal representative is required to provide notice to all creditors of the decedent's probate. Creditors then have to file a claim. The personal representative then makes a determination of whether to pay the claim or not. If there are deficiencies in the claim, e.g. it was not timely-filled, the personal representative can appropriately reject the claim. Ultimately, the personal representative needs to resolve all creditor claims before the final step can take place. 

3. Distribution of the Balance of the Estate

When all assets have been collected and appraised, all debts have been paid and a sufficient amount of time has elapsed, the personal representative can seek closure of probate.

To close probate, the personal representative will need to file a petition. It will contain a summary of what has taken place in the probate, e.g. when it started, who filed creditor claims, did the decedent have a will, how will the distribution go, etc. If the petition is approved, the personal representative can make distributions to the beneficiaries.

In light of the foregoing, people often ask "how long does probate take?" The common range is for probate to take 9-15 months to complete in most counties. From personal experience, the probates I've handled have taken between 7-12 months. The process can be longer if the matter is contested, e.g. there is a will contest. 

Is Avoiding Probate Always Good?

One of the main reasons why a person writes a revocable trust is to avoid probate. The rationale is that once the person dies, the administration of their trust estate is typically a more expedient and economical method to administer than a probate estate. For example, probate takes 6-12 months to complete in California and the attorney fee is based off of the value of the estate. If the estate was worth $400,000, the statutory attorney fee is $11,000. This probate fee is higher than a trust administration fee in almost all cases because there are more steps to complete in probate than in trust administration. However, probate does have one mandatory aspect over trust administration that can be advantageous for beneficiaries, an avenue to address creditor claims.

When a person passes away, they will invariably have some outstanding debt. This might include a phone bill, a cable bill, a utility bill or a mortgage. These debts can range from the hundreds of dollars to millions of dollars, depending on the size of the estate. For instance, if a person purchased a multi-million dollar home, it would be easily conceivable that they had a $1M+ mortgage. 

The second step of probate is to satisfy the claims of creditors.  However, the manner in which these claims are addressed is not always the same for probate and trust administration.

In probate, the personal representative is required to provide notice to all creditors so they can submit their claim to the probate court. The personal representative can then either accept or reject the claim. Ultimately, before probate can be closed, the personal representative is required to state that all creditor claims have been satisfied. For example, in my petitions that I have I used to close probate, I say the following: "Petitioner has made all reasonable efforts to ascertain Decedent’s creditors. Notice of administration has been sent to all known and reasonably ascertainable creditors. More than 4 months have elapsed since the date letters first issued. The time for filing creditors' claims expired on January 18, 2014." 

Conversely, in trust administration cases, there is no requirement that the trustee have a creditor claim procedure, i.e. open probate. Instead, California law makes it optional for the trustee if they want to open probate. Probate Code § 19010. Thus, the trustee is free to satisfy creditor claims non-judicially. Alternatively stated, the trustee can pay debts without having to provide proof to a probate judge that they have done so. Occasionally this is not an issue if the decedent had few debts or their debts were easily verifiable. Issues arise though when the decedent had contingent or unknown debts, e.g. they were a defendant in a lawsuit. Hence, it cannot be said that opening probate is disadvantageous in every respect. By forcing the personal representative to address creditor claims before a distribution is made, the beneficiaries should feel confident that there is no lingering unaccounted for debt.

Pro Rata and Non-Pro Rata Distributions

People enjoy having flexibility. When faced with the choice of either handcuffs or freedom, a prudent person would opt for the latter instead of the former. Consequently, when a trustee or personal representative is tasked with distributing a person's estate, flexibility is unsurprisingly useful there as well. This raises the issue of whether a person's estate grants the personal representative or trustee the ability to make pro rata or non-pro rata distributions.

In a pro rata situation, the beneficiary is given an equal portion of each item of the estate. In a non-pro rata situation, the beneficiary is entitled to a certain portion of the total estate but not to a particular item. The following example illustrates the difference between a pro rata and a non-pro rate distribution.

In 2008, Abel, a resident of San Jose, CA, writes a will and devises his entire estate equally to his close friends Baker and Carr, and names Elbert is neighbor as personal representative. During probate, Elbert inventories Abel's estate and discovers that Abel owns (1) a $200k condo located in Almaden Valley, (2) a $200k bank account at Star One Credit Union, (3) $10k in Southern Company common stock and (4) a 2000 Honda Accord worth $10k according to Kelley Blue Book. 

In a pro rata situation, Elbert would grant a 50% interest in each items, namely items (1)-(4), to both Baker and Carr.  Thus Baker and Carr would co-own the house, bank account, stock and car. In a non-pro rata situation, Elbert could distribute items (1)-(4) to Baker and Carr whereby they would receive the same total value but not the same items. Therfore Elbert could give the house and car to Baker, items (1) and (4), and the stock and bank account, items (2) and (3), to Carr. This would be permitted in a non-pro rata situation because even though the items received are different, the total amount is not, i.e. the house is worth is $200k and the car is worth $10k whereas the bank account is worth $200k and the stock is worth $10k.

By providing for a non-pro rata distribution, this gives the personal representative or trustee the flexibility to distribute the estate in a manner pleasing to the beneficiaries. No two people are alike. It is highly likely that one beneficiary may prefer a home instead of cash, or a car instead of stock. For example, one beneficiary may have a sentimental attachment to a house or a car, whereas another beneficiary may just be interested in the receiving their share of the total estate regardless of the assets receive. A non pro-rata distribution allows the personal representative or trustee to satisfy these dual desires because they are not handcuffed when making a distribution. Instead they are free to mix and match items to equalize the distributions. 

Who Can Initiate Probate?

To begin probate, California law specifies which persons are eligible to do so. Typically the petitioner is seeking to become the personal representative, the person who will represent the interests of the estate.  Depending on who the person is, the personal representative can be known by the following terms: (1) executor, (2) administrator, (3) administrator with the will annexed, (4) special administrator, (5) successor personal representative, or (6) public administrator. Prob C §58(a).

According to California law, "any interested person may commence proceedings for administration of the estate of the decedent by a petition to the court for an order determining the date and place of the decedent’s death and for either or both of the following: (1) Appointment of a personal representative. (2) Probate of the decedent’s will. Prob C § 8000. The question then becomes, what is the definition of an "interested person."

Consequently California law defines the phrase "interested person" to be the following individuals: (1) an heir, (2) devisee, (3) child, (4) spouse, (5) creditor, (6) beneficiary, or (7) any other person having a property right in or claim against the estate of the decedent that may be affected by the proceeding; (8) any person who has priority for appointment as personal representative; and (9) a fiduciary representing an interested person. Prob C § 48. 

Naturally the question then becomes what constitutes an heir, creditor, etc. The following are definitions of an heir and devisee.

An heir is a person who would inherit the decedent's estate if the decedent did not write a will pursuant to the laws of intestate succession. Prob C § 44. This is a fancy way of saying that a person's estate goes to their next of kin if they did not write a will. For example, John, a widower was a wealthy land-owner who resided in Los Gatos, CA. He had 3 children, Heathcliff, Hugo and Henry. John despised lawyers because he believed them to be devilish and avarice. Consequently, John never planned his estate and he died without having penned any estate planning instrument(s). His 3 sons, as heirs, would each be entitled to commence probate proceedings in Santa Clara County because they would inherit his estate through intestate succession.

A devisee is a person named in a will as the beneficiary of either personal and real property or both. Prob C § 34. For instance, from the above example, if John had wrote a will and named his son Heathcliff as the beneficiary of his Rolex watch, then Heathcliff would qualify as a devisee.    

How long does probate take?

It is well-known that probate is a very long judicial process. The following are some of the required steps to be taken in probate, though the process for each estate is unique.

First a personal representative must be appointed by the court. Second, following appointment of the personal representative, they must inventory the decedent's assets and have them appraised. Third, the personal representative must satisfy all valid outstanding claims against the decedent's estate. Fourth, the personal representative must petition the probate court to terminate the probate proceeding, i.e. petition for final distribution. 

A natural question then is, how long should probate take?

Depending on which county, probate typically takes between 7-12 months to complete. One reason for the gap is because some courts have a clogged probate calendar so hearing dates are scheduled far in advance. In particular, I have heard from other attorneys that Los Angeles County has a lengthy waiting period when filing new probate cases. Furthermore, sometimes it is difficult to locate beneficiaries or assets. Without a distinguishing description, a beneficiary can easily become ostensibly "anonymous." For instance, if the beneficiary's name is John Brown, it might be cumbersome for the executor to ascertain which John Brown the testator was referencing in their will.

It should be noted that there is no accelerated probate process. At the very least, 6 months are taken up by 3 steps. First, a petition for probate is typically calendared at least 1 month in advance. Second, the window to file a creditor claim is 4 months months. Third, a petition to distribute the estate is typically calendared at least 1 month in advance as well. Thus the beneficiary of an estate has to wait at least half a year, whether they like it or not.

However, the California probate code imposes a deadline to either close the account or provide a status report once a personal representative has been appointed.

Probate Code § 12200 reads:

"The personal representative shall either petition for an order for final distribution of the estate or make a report of status of administration not later than the following times: 

(a) In an estate for which a federal estate tax return is not required, within one year after the date of issuance of letters.

(b) In an estate for which a federal estate tax return is required, within 18 months after the date of issuance of letters. 

Thus, a beneficiary does not have to wait an indefinite period of time without recourse. 

For example, in early 2013, Thomas writes a will and passes away on August 15, 2013. In the will, Thomas names his neighbor Enzo as the executor and bequeaths his entire estate, which consists of a $600,000 home in Campbell, CA and a $50,000 bank account, to his nephew Boris. Enzo applies to become the executor and is appointed such on November 1, 2013 by the probate court. Upon becoming executor on November 1, 2013, Enzo needs to either petition to close the estate or file a status report by November 1, 2014. The reason that Enzo is not given 18 months is because no estate tax is due for Thomas' estate. The estate tax threshold in 2013 is $5.25M, which Thomas' estate obviously falls below. Thereby 12 months, instead of 18 months, is used as the measuring window of time.   

Probate Referee

When a petition for probate has been filed and granted, the estate's personal representative is entrusted with collecting the decedent's assets and appraising them. While the personal representative may appraise some of the items, certain items require the expertise of a probate referee.

For reference, the probate referee is appointed once the order for probate has been granted. See Q6 - Form DE-140.   

The personal representative is to appraise the items in
Prob C § 8901. These include:

(a) Money and other cash items. As used in this subdivision, a “cash item” is a check, draft, money order, or similar instrument issued on or before the date of the decedent’s death that can be immediately converted to cash.

(b) The following checks issued after the date of the decedent’s death:

(1) Checks for wages earned before death.

(2) Refund checks, including tax and utility refunds, and Medicare, medical insurance, and other health care  reimbursements and payments.

(c) Accounts (as defined in Section 21) in financial institutions.

(d) Cash deposits and money market mutual funds, as defined in subdivision (b) of Section 9730, whether in a financial institution or otherwise, including a brokerage cash account. All other mutual funds, stocks, bonds, and other securities shall be appraised pursuant to Sections 8902 to 8909, inclusive.

(e) Proceeds of life and accident insurance policies and retirement plans and annuities payable on death in lump sum amounts.

The probate referee appraises all other property which typically includes real property, business interests, stocks, etc. Prob C § 8902.

The probate referee is entitled to a fee of 1/10 of 1% of the total value of the property for each estate appraised. Prob C §8961(a). The minimum fee is $75 and the maximum fee is $10,000, although the maximum fee can be increased upon the judge's discretion. Furthermore, the probate referee is allotted reimbursement costs for associated expenses, e.g. travel costs. Prob C §8961(b).   

The following is a hypothetical example of the inventory and appraisal process.

Danny Decedent, a widower, lived at 650 Rosewood Court Los Altos, CA 94024 and had 1 savings account at Star One Credit Union. The aforementioned constituted Danny's entire estate. Danny wrote a will that named his neighbor Jim Rogers as executor. When Danny died in 2013, Mr. Rogers probated the will in Santa Clara Superior Court. Upon being named executor of Danny's estate, Mr. Rogers completed his portion of the inventory and appraisal, i.e. he appraised the value of Danny's Star One account. Mr. Rogers then mailed the appraisal to the probate referee. 

The probate referee went to 650 Rosewood Court to appraise the home. The probate referee appraised the value of the home at $1M. Thereafter, the probate referee mailed his report back to Mr. Rogers and submitted a fee request of $1,000 for the appraisal and $25 for travel costs. Mr. Rogers then filed the completed inventory and appraisal with Santa Clara Superior Court in order to satisfy this probate requirement.  

Safe Deposit Box

Many people utilize a safe deposit box to store valuable items. A person might keep a prized piece of jewelry, an antique watch or their passport in it. What is also commonly found in a safe deposit box is an original copy of a person's will and trust. A will and trust are one of the few legal documents where an original is generally required. I always tell clients to store their will and trust in a safe deposit box, assuming they have one, because it is a secure location.

Frequently, a person will own a safe deposit box in his or her name alone.  Since the asset is held in their name alone, there is the initial concern that access will be prohibited once they pass away. However, the probate code has been amended to allow access to the safe deposit box for specified reasons for certain people. The following explains how a person can gain access to the safe deposit box and what they may remove.

First, the person seeking access must have a key to the box. Prob C § 331(a). It is not enough if the person is a relative or friend of the decedent, he or she needs a key to gain access. Next, this person must showing the bank both of the following (Prob C § 331(b):   
 

(1) Proof of the decedent’s death. Proof shall be provided by a certified copy of the decedent’s death certificate or by a written statement of death from the coroner, treating physician, or hospital or institution where the decedent died.

(2) Reasonable proof of the identity of the person seeking access. Reasonable proof of identity is provided for the purpose of this paragraph if the requirements of Section 13104 are satisfied.

In short, the person needs to show a death certificate and a driver's license to the bank.

Upon satisfaction of Prob C § 331(b), the bank is required to do the following:

(1) Keep a record of the identity of the person.

(2) Permit the person to open the safe deposit box under the supervision of an officer or employee of the financial institution, and to make an inventory of its contents.

(3) Make a photocopy of all wills and trust instruments removed from the safe deposit box, and keep the photocopy in the safe deposit box until the contents of the box are removed by the personal representative of the estate or other legally authorized person. The financial institution may charge the person given access a reasonable fee for photocopying.

(4) Permit the person given access to remove instructions for the disposition of the decedent’s remains, and, after a photocopy is made, to remove the wills and trust instruments.

In short, the person can remove the decedent's will and trust from the safe deposit box but must make a copy of each. 

Then, the person is to deliver all wills found in the safe deposit box to the clerk of the superior court and mail or deliver a copy to the person named in the will as executor or beneficiary as provided in Section 8200. Prob C § 331(e).

However, this person is not given carte blanche in regards to removing items. The last part of Prob C § 331 states:

(f) Except as provided in subdivision (d), the person given access shall not remove any of the contents of the decedent’s safe deposit box.

Thus, if the safe deposit box had a large sum of cash, an Omega watch or the keys to a Ferrari in it, the person would be prohibited from taking these items. The personal representative would be the appropriate party to remove these items from the safe deposit box. A person is appointed the personal representative of a decedent's estate only after filing various documents with the probate court.

Writing a Will

Writing a will is not an overly cumbersome process. The following are some provisions that all wills should contain. Of note, the term for a person who writes a will is "testator." A person who dies with a will dies "testate" whereas a person who dies without a will dies "intestate." 

Your full name and any nicknames you go by 

Clearly it would be difficult to administer a will if the testator was anonymous. Moreover, it is important to include any nicknames you might commonly go by. For example, past clients have routinely gone by their nicknames. Even their bank accounts or driver's license had their nicknames on the account (don't ask how they did this).

The point is to be able to ascertain who in fact wrote the will. 

Place of residence 

The common practice is to list the county of residence, rather than the city of residence, and the state of residence. There is no legal requirement to do so but it is good practice. If you do not know what county you reside in, well, just Google the city you live in and Wikipedia can tell you.

California law says that a will needs to be probate in the county of residence of the decedent. Hence including the county of residence would prove helpful for the executor. Prob C § 705. 

Name of spouse and/or children 

California is a community property state. Each spouse has a 50% community property interest in the entire marital estate. By omitting a spouse in their will, the testator runs the risk that the omitted spouse can claim an intestate share of the testator's estate despite their omission. Prob C §§100-101.  There are exceptions to this rule though. Prob C §21611.

Similarly, if a testator fails to mention his or her children, such omitted children can claim a share of the testator's estate, just like a spouse, despite their omission. Prob C § 21620. Although, again, there are exceptions to this general rule. Prob C § 21621. 

A No-Will Contract 

Yes, a person can write a contract which specifies how they will write their will. Prob C § 21700. I have never personally seen a will contract but have read about them. Regardless, it is good practice to include a no-will contract clause to erase any doubt. 

List of bequests

People read wills because they want to see what they will inherit. Obviously then, it is important to clearly delineate what item goes to which person. For example, a testator can write "my ATT stock to my cousin Bob" suffices.

It is not necessary to be overly verbose or complicated when making bequests. Just pick an item and list a person. 

Name an Executor 

The executor is a person nominated in a will to be appointed by the court to administer the estate at the testator's death.The executor can be virtually anyone, a relative, a family friend, a neighbor or a corporation. 

Just don't pick the crazy neighbor who refuses to mow his lawn, the relative who has filed bankruptcy multiple times or the friend who likes to buy products he sees while watching infomercials at night. 

Testator's signature 

The testator has a few options as to who can sign the will. (1) The testator can sign the will,  (2) a person  in the testator's presence by the testator's direction, or (3)a court-appointed conservator of the testator can sign as well. Prob C § 6110.

The norm is to have the testator sign. 

Attestation Clauses 

California law requires that 2 witnesses sign a formal will. Prob C § 6110. However, a holographic will does not require any witnesses to sign. Prob C § 6111. Still, holographic wills are ripe for fraud and undue influence. Hence, the writing of a holographic will is often discouraged.

What is a Will

The most recognizable estate planning document is the will. Wills have been around for centuries although the relevance of wills has steadily declined due to the advent of trusts. Regardless, wills still play an important role in the estate planning process as most individuals do not need a trust to efficiently and effectively transfer their estate upon their passing. Here are some frequently asked questions in regards to wills. For reference, a “testator” is the person who writes the will. 

1. What is a will? 

A will is a “document by which a person directs his or her estate to be distributed upon their death.” Black’s Law Dictionary (8th Edition, 2004). 

2. Who can write a will? 

In order to write a will, testamentary capacity, the individual must be 18 or more years of age who is of sound mind may make a will. Prob C § 6100.

Clearly the first requirement, the age restriction, is a simple requirement that requires little explanation. An individual is either at least 18 years old or not.

As for the “sound mind” aspect, it is usually evident where a person lacks the capacity to write a will. Furthermore, there is a presumption that any adult has the capacity to write a will. Prob C § 810. 

Regardless, there are occasions where the individual lacks testamentary capacity and the will’s nullification follows. For example, in one case an uncle left his estate to his attorney and his banker (quite possibly the most vilified employment combination around) rather than his nephew because he believed that his nephew had killed his mother even though the nephew had not yet been born at the time of her death. Estate of Martin (1969) 270 CA2d 506. 

3. Does a will have to be written in English? 

No, surprisingly a will does not have to be written in English in order for it to be probated. Estate of Jepson (1918) 178 C 257, 172 P 1107 (German); Estate of Guerrero (1986) 183 CA3d 723 (Spanish). However, the English language translation must be attached to the petition for probate of the will in the foreign language. Prob C § 8002(b)(2). 

4. How many pages is a will? 

A will’s length is dependent upon the testator’s ambitions. Some testators have elaborate plans as to how to distribute their estate which could take many pages to write. Whereas other testators have simple ideas for their estate’s distribution which only require a few pages to spell out. The wills that I have written are usually around 5 pages. 

5. What property can be disposed of in a will? 

A will governs the disposition of assets held solely in the testator's name that are not governed by beneficiary designation. Furthermore, if the estate is named as the beneficiary or if no designation has been made, a will can direct the distribution of such assets. 

6. When does a will become effective? 

A will becomes effective upon the testator’s death. This is in contrast to a revocable trust which becomes effective during the lifetime of the person who wrote the trust. 

7. Can I revoke a will? If so, how? 

Yes, a testator may revoke a will through two methods. A testator may revoke a will via a subsequent written instrument or through the mutilation of the previously executed will. Prob C §6120.

All the wills I write include an introductory clause which states “I revoke all wills and codicils that I have previously made.” This ensures that any client of mine will not have to worry about multiple wills floating around at the time of their passing. 

8. Can I amend a will? If so, how? 

Yes, a will can be amended. The name used for this amending document is a codicil. A codicil is a testamentary document that supplements, amends, qualifies, or republishes a prior testamentary document. Estate of Benson (1944) 62 CA2d 866. A valid codicil is part of the will to which it refers, and both instruments are construed together as one. 

9. Can a will create a trust? 

Yes, a will can create a trust. A will that creates a trust is called a testamentary trust. The necessary elements for creating a testamentary trust are identical to creating a revocable trust. 

10. Which person administers the will? 

The person entrusted with administering the will is the personal representative. 

11. Does California recognize an oral will? 

No, California does not recognize oral wills. The four kinds of wills allowable in California: witnessed, holographic, statutory and uniform international, all require that it be in writing. So please do not create a video outlining your testamentary desires, it will not work. 

12. Is a will notarized? 

No, wills are not notarized. 

No competent California attorney will tell you to get your will notarized. The reason for this is because the most common type of will, a witnessed will, requires the attestation of two witnesses. Thus, in the eyes of the law, a notary’s signature will not qualify as two witnesses. 

13. Who should witness my will? 

Any person competent to testify to the requisite facts may act as an attesting witness. Prob C §6112(a). However, there are legal consequences if the witness doubles as a beneficiary. Hence, it is prudent to have disinterested witnesses sign the will in order for a bequest to not be invalidated on the grounds that an interested witness signed the will. Of note, Probate Code §6112 does not prescribe an age requirement for a witness. In light of this, it is prudent to have the witness be at least 18 years old because minors are not exactly the most reliable witnesses. 

14. Are wills ever read? 

Yes, wills are read on television shows and in the movies.

In the real-world, however, wills are never read. Instead, wills are deposited with the local probate court. Therefore, the will because a public document whereby any person is free to inspect the will for their personal contentment. 

15. Does an attorney have to assist in the drafting of the will? 

There is no requirement that an attorney assist in the drafting of a will for a testator. A testator is free to draft a will absent the assistance of counsel. However, it is a criminal offense, namely a misdemeanor, for anybody other than an active member of the California State Bar to dispense legal advice in this state to an individual who is thinking about writing a will. Bus & P C §§ 6125-6126.

On a few occasions I have been asked to review a will that was written without the assistance of a lawyer. All of these wills were either not legally sufficient or drafted erroneously. For example, one will lacked the necessary number of witnesses while another will disposed of property outside the testator’s estate.

The people who write wills without the assistance of counsel are almost always motivated by economic reasons. There is nothing inherently wrong with being frugal. However, the problem is that these wills often fail to meet legal sufficiency or incorrectly dispose of the testator’s estate. Consequently, the testator will end up having to pay more money in the end because the previously made mistakes will need to be corrected and only then can a new will be drafted.

California Probate

Here are some common questions associated with probate. 

1. What is probate? 

In short, probate is a court-supervised procedure for collecting a deceased person's assets, paying debts and taxes to the appropriate parties, and distributing the remaining property to the person's beneficiaries.

The distribution of the beneficiaries’ property is accomplished through either the instructions the person set forth in their will or as determined by state law if the person died without a will, which is called “intestacy.” Conversely, if you die with a will, you die “testate.” 

2. When does probate occur?

Generally speaking, probate occurs when a person passes away and their estate is comprised of assets totaling more than $100,000 which are not subject to non-probate transfers or held in a revocable trust. Non-probate transfers would include life insurance contracts, assets held in joint tenancy, pay-on-death bank accounts, transfer-on-death stocks, etc.

3. If I write a will can I avoid probate?

No, all wills are probated. Thus, writing a will would not prevent your estate from being probated.

4. Why do people try to avoid probate?

The two main reasons why people would like to avoid probate is due to the time and cost involved. See Questions #5 and #6.

5. How long does probate last?

It is difficult to definitively state how long probate will last because the probate timeline is driven by the amount of court filings in each county’s superior court and the probate’s complexity. For instance, in a simple probate in a smaller county such as Modoc or Alpine, probate could be completed in as little as 6-8 months. Conversely, in a larger county such as Los Angeles or Santa Clara with a more complex probate, the process could easily take 12-14 months to complete.

6. How much is the attorney and personal representative compensated?

The amount of compensation is based off of the value of the person’s estate, which is basically everything they own. Prob C §§ 10800, 10810. The attorney and personal representative are, generally speaking, compensated in the same manner as provided for below:

Estate Value               Fee for Attorney and Personal Representative

$100,000                    $4,000

$200,000                    $7,000

$300,000                    $9,000

$400,000                    $11,000

$500,000                    $13,000

$600,000                    $15,000

$700,000                    $17,000

$800,000                    $19,000

$900,000                    $21,000

$1,000,000                 $23,000

Furthermore, the fees for both the attorney and personal representative may go higher for extraordinary services such as selling a house, defending a will contest, or litigating a matter. Prob C § 10811.

What is particularly important about the estate value calculation is that encumbrances, such as a mortgage, are not included in the probate calculation. Prob C § 10810(b). Thus, if the decedent had a house worth $500,000 on the date of death but had a mortgage of $300,000 on the property, the probate estate would be valued at $500,000 not $200,000. This is a significant difference because the fee for $500,000 is $13,000 while the fee for $200,000 is $7,000.

6. What happens if probate is not needed?

There are numerous procedures that are used in lieu of the formal probate process: small-estate affidavit, spousal property petition, non-probate transfers or trust administration.

7. How many steps are needed to complete the probate process?

The answer to this question varies because there are a few probate filings that are not mandatory. Thus, one probate might include the optional filed document whereas another probate will not. If you are really bored, you can call my office and I can pull out my probate checklist from my desk and rattle off the required probate steps to aid your boredom.

8. What is the first step in the probate process?

The first step in the probate process is to lodge the decedent’s will with the local probate court.

9. What is the last step in the probate process?

The last step in the probate process is to transfer the assets from the decedent’s estate to the beneficiaries. This can be done only after numerous steps have been completed however.

10. What is a personal representative?

A personal representative is the individual entrusted with executing the probate process from start to finish.

11. How is a personal representative chosen?

A personal representative is usually chosen through either designation in a will or if the decedent wrote no will, then through a next of kin formula found in Prob C § 8461. This next of kin formula basically says that the closest relative to the decedent has priority to become the personal representative.

12. Can the personal representative be removed?

Yes, just as a trustee of a revocable trust can be removed, so too can a personal representative. For example, per Prob C §8502, the personal representative may be removed in the following situations:

1. The representative has wasted, embezzled, or mismanaged the estate property, or committed a fraud on the estate or is about to do so;
2. The representative is incompetent to act;
3. The representative has wrongfully neglected the estate;
4. The representative has long neglected to perform any acts as representative;
5. Removal is necessary for protection of the estate; or
6. The representative is subject to removal for any other cause provided by statute  

13. Can you make an early distribution of a probate estate?

Yes, a personal representative may petition the probate court to allow an early distribution of the probate estate. Prob C §11620. Although, the aggregate amount of all property that can be distributed is limited to 50 percent of the net value of the estate. Prob C §11623(a)(2). Thus, in the case of a $1,000,000 probate, the personal representative could not distribute more than $500,000 to the beneficiaries.

Otherwise, the distribution of the estate can only occur after probate has been completed.

14. Are there advantages to probate?

Yes, there are advantages to probate. If an attorney ever tells you that there is nothing positive about probate, they are fibbing.

For example, since probate is a court-supervised process, the beneficiaries can be assured that the personal representative will faithfully execute their duties or else suffer monetary punishment. However, given the time and cost involved with probate, the disadvantages of probate outweigh its advantages typically.

15. What role does an attorney serve during probate?

The attorney’s role is to supervise the personal representative during the execution of his or her duties. Consequently, the attorney will make sure that the personal representative is filing the right documents at the appropriate time in the correct fashion.

There is no requirement that an attorney be hired to assist a personal representative in handling a probate. However, it is preferable because the practice of law is what lawyers are trained to do. Or at least that is what I was told in law school. In contrast, the personal representative often has little exposure to the legal realm other than what they have seen on television or in the movies, which is often times a gross exaggeration of reality. Sad but true.

16. How common is probate?

Probate used to be the dominant form of post-death administration for a decedent’s estate. 

However, due to prevalence of revocable trusts (“living trusts”) which are exempt from probate and non-probate transfers such as pay-on-death bank accounts, the frequency of probate is gradually decreasing.

17. When will probate typically occur?

The easiest way for a probate to be required is for an individual to own their home in their individual capacity and die with or without a will. For example, if John Smith was the sole owner of 2176 El Capitan Ave Santa Clara, CA 95050 and died, a formal probate would be required because the home’s value would exceed $100,000 and the home was not held in joint tenancy or transferred to a revocable trust. Thus, John’s personal representative would need to navigate the probate process in order to distribute the house to John’s beneficiaries. 

Difference between a Trustee and an Executor

Executor and personal representative are terms synonymous with probate. In short, an executor is the court-appointed representative who gathers the decedent’s (the dead person) possessions, pays off the decedent’s outstanding debts and distributes the remaining possessions to the beneficiaries named in the will or if the decedent had no will, those in close familial relationship to the decedent.

For example if Dave, the decedent, died with a will and named Elroy as executor in the will, Elroy would be entrusted, if he so chose, to gather Dave's possessions, pay off Dave's debt and distribute Dave's possessions to his family.

A trustee is a term synonymous with trusts. In short, a trustee is the legal owner of trust property who manages and distributes trust property for the beneficiary’s enjoyment according to the terms of the trust.

For example, if Samuel created a trust for the benefit of his son Bart, named Thomas as trustee and funded the trust with a beach house in Santa Cruz, Thomas would be obligated, if he so chose, to manage the beach house for Bart's benefit.