Think a will is being improperly handled? Protect your rightful inheritance before it’s too late.
Although a well-crafted will can make estate administration more straightforward, obstacles may arise that delay the process or put beneficiaries’ inheritances at risk.
Consider these common scenarios:
- The named executor is the only person with a copy of the decedent’s will, yet months have passed, and they still haven’t lodged it with the court to initiate probate.
- A will has already been filed with the court, but another will surfaces, raising questions about which document truly reflects the decedent’s intent.
- You were never notified about the probate of the will despite being a beneficiary, causing you to miss the deadline to contest it, even though you had legitimate concerns.
- The executor sold estate real property despite the will explicitly forbidding the sale.
Unfortunately, these kinds of problems can’t always be prevented, but they can often be mitigated, reversed, or even eliminated with prompt legal action and the right strategies.
To protect yourself, it’s crucial to understand how a will works after death — including what is allowed, what is not allowed, and what steps to take if rules have been broken.
From assessing the validity of a will to clarifying what assets you may be entitled to under it, a probate attorney can help guide you through the legal process after someone dies with a will.
What if no valid will exists? Discover what happens when someone dies without a will.
Understanding What Happens to a Will After Death
Whether you’re an executor or a beneficiary, it’s essential to understand how a will works after someone dies. Executors are legally obligated to carry out the will’s terms exactly as written, while beneficiaries must know what the will says and how it should be applied in order to protect their inheritance and hold the executor accountable.
How Long Is a Will Valid for After Death?
Asking how long a will is valid after death assumes the will is valid to begin with, but the document’s validity is not automatic. A will must be admitted to probate to be legally recognized as valid.
In probate, the court confirms that the document is the decedent’s true last will and testament. This typically involves verifying the testator’s signature, ensuring they had mental capacity at the time of signing and confirming proper witness signatures (California generally requires two).
A will can be deemed invalid after death in two ways: The court may refuse to admit it into probate, or it may revoke admission later. Either scenario requires clear and convincing evidence that the will does not reflect the decedent’s true intent.
Unless successfully challenged, a will must be followed as closely as possible. Importantly, wills become irrevocable once the testator loses capacity or dies — meaning they cannot be changed or revoked.
Once the estate has been fully administered and assets distributed according to the terms of a will, the estate is closed, and the will is no longer needed.
How Can I See a Will of a Deceased Person?
How you find a will of a deceased person depends on your relationship to them. Beneficiaries named in the will and heirs-at-law are entitled to request a copy from the executor, who is required to provide it.
If you aren’t a beneficiary or heir, you still may have the ability to secure a copy of the will. Once a will has been filed with the probate court, it becomes part of the public record, and anyone can typically obtain a copy from the county clerk’s office.
If a will has not yet been filed, locating it may take some effort. Speaking with the decedent’s family, close contacts or the person likely named as executor is often the best starting point.
Who Reads the Will?
Contrary to popular belief, California does not require a formal reading of the will. Instead, per Probate Code section 8110, the person who files the petition for probate — usually the executor nominated in the will — must serve notice of administration to estate beneficiaries, heirs-at-law, co-executors, alternate executors, and the decedent’s known or reasonably ascertainable creditors. This notice must be given at least 15 days in advance of the initial probate hearing.
The notice must include the hearing date, time, and location, the petitioner’s contact details, and information about the recipient’s right to either object to the will’s admission to probate or contest the will. The content of the notice and its format are governed by Probate Code section 8100.
Although executors may attach a copy of the will to these notices, they are not legally required to. If one isn’t included, beneficiaries should request a copy directly or obtain one through the county recorder’s office.
“Having the will in hand is critical,” says Roee Kaufman, a partner at Keystone Law. “Without it, beneficiaries cannot confirm their inheritance or ensure the executor is following the document.”
Under Probate Code sections 8120 – 8125, the petitioner also is required to periodically publish formal notices of estate administration in a local newspaper to alert creditors of the decedent’s passing.
How Do You File a Will?
You file a will by completing a petition for probate and submitting it, along with the original will, to the superior court in the county where the decedent lived at their time of death.
For example, if the decedent’s primary residence was in Los Angeles County, the petition and original will would need to be filed with the Los Angeles County Superior Court.
The person responsible for filing the will is usually the executor named in the document. However, it’s important to note that this “executor” is only a nominee until the court formally appoints them (which typically occurs at the initial probate hearing) and issues Letters Testamentary, which authorize them to act.
If the nominated executor unreasonably delays opening probate, cannot be located, or is otherwise unable to serve, another interested party (such as a beneficiary or heir-at-law) or even a creditor of the decedent may petition the court to open probate instead. Creditors sometimes take this step themselves because their claims, regardless of merit, are time-barred after one year from the date of the decedent’s passing.
While it is not unusual for probate to take weeks or even months to be opened, significant delays can harm the estate. Certain property, such as vehicles or real estate, may lose value if left unmanaged, ultimately reducing beneficiaries’ inheritances. For this reason, filing the will and opening probate should be treated as a priority.
Because probate can be complex and emotionally taxing, many executors choose to work with a probate attorney to ensure the process progresses smoothly and that they meet all their legal obligations. Beneficiaries and heirs may also benefit from legal counsel to safeguard their rights and inheritance throughout the administration process.
What Role Does the Executor Play?
If a will provides the roadmap for how an estate should be distributed, the executor is the driver. But this isn’t an ordinary road — it’s lined with potential pitfalls and legal hazards — which means the executor must follow the map precisely.
In other words, even though an executor may have broad authority over how an estate is managed after death, they are legally bound to carry out the will exactly as written. Any deviation, even if well-intentioned, could be considered executor misconduct — which may leave them personally liable.
Although the nominated executor is usually the one to file for probate, they are not obligated to serve. However, if they wish to, waiting too long has consequences. According to Probate Code section 8001, if the nominated executor waits more than 30 days from the date they learned of the decedent’s passing and their nomination to petition the court for administration of the estate, they may be held to have waived their right to appointment as executor, unless good cause for the delay is demonstrated.
For those who do wish to serve, timely filing for probate is essential. Still, it’s important to understand that the role doesn’t officially begin until the court formally appoints you. In short, the nominee has no legal authority to access estate assets or make decisions on behalf of the estate until the court explicitly gives them the authority.
How Is a Will Executed After Death? — 7 Key Steps
When someone dies with a valid will, their estate should be distributed according to its terms — but first, a court-supervised process called probate usually has to occur. The probate process ensures the decedent’s debts and other liabilities are properly handled and that the remaining assets go to the people or entities the decedent intended.
Some estates can utilize simplified procedures instead of full probate — such as small estate affidavits or spousal property petitions. However, affidavit procedures are limited to estates valued at $208,850 or less, and spousal procedures are reserved for married couples and those in registered domestic partnerships. These shortcuts can transfer property without a full probate when the estate qualifies.
1. Initiate Probate of the Will
To start, the original will is lodged with the superior court in the county where the decedent resided, and a petition for probate is filed — typically by the person named as executor. Once the petition is filed, the court sets a hearing date.
Remember, a will has no legal effect until the court admits it to probate.
2. Notify Interested Parties
After a hearing date is set, the petitioner must serve notice of the hearing to interested parties (i.e., beneficiaries, heirs, co- and alternate executors, known and reasonably ascertainable creditors) and publish a Notice of Petition to Administer Estate in a local newspaper of general circulation.
Notices to creditors must meet the following requirements:
- The notice must be published for at least 15 days in a local newspaper of general circulation published at least once per week in the city and county where the decedent primarily resided at their time of death.
- Publication must occur three times.
- There must be at least five-day intervals between the first and last publication dates — the first and last publication days are not included.
- Once all required notices to creditors have been published, an affidavit confirming completion of the publications must be filed with the court clerk.
3. Seek Appointment as Executor
It’s typically expected for the executor nominee to appear at the initial probate hearing, but whether they’re appointed is a decision that ultimately lies with the court.
If the court appoints the nominee, they become the executor and the court issues Letters Testamentary. If the will is valid but no nominee can serve (or none is named), the court appoints an administrator with will annexed. If no valid will exists, the court appoints an administrator, and the estate is distributed according to intestate succession laws. Collectively, executors and administrators are personal representatives.
You may not access estate assets or act on an estate’s behalf until letters are issued — doing so can result in personal liability.
4. Identify and Gather Assets
Once appointed, the executor identifies estate assets, secures them, and obtains valuations as of the decedent’s date of death. This information is reported on the Inventory and Appraisal, which is filed with the court and shared with interested parties.
Executors owe a fiduciary duty to act solely in the estate’s and beneficiaries’ best interests. Being both the executor of a will and a beneficiary does not permit shortcuts or self-dealing. To avoid personal liability, conflicts of interest must be carefully managed.
5. Pay Debts
Most debts do not die with the decedent; instead, they become obligations of the estate. As such, the executor must mail or deliver notice of the decedent’s passing to all known and reasonably ascertainable creditors.
Whether notified or not, creditors must remember they are subject to the deadline for entering creditor’s claims with an estate, which is no later than four months after the executor is formally appointed, or 60 days after receiving mailed notice — whichever comes later.
Valid claims typically must be paid before heirs or beneficiaries can receive distributions. Invalid claims, on the other hand, can be denied and, if necessary, litigated.
6. Prepare Accounting
Beneficiaries and heirs have the right to request a formal accounting once per year while an estate remains open. In addition, the executor must file a final accounting alongside the petition for final distribution once an estate is in a condition to be closed. An estate is in a condition to be closed when all estate assets have been accounted for, all valid debts have been paid, and all estate disputes have been settled.
It’s important estate accountings clearly show money in and out of the estate (e.g., sales proceeds, income, fees, taxes, expenses). While beneficiaries may waive a formal accounting, this doesn’t affect their ability to informally request an accounting or petition the court to compel one.
An executor must operate with transparency. Therefore, if an executor refuses to show accounting to beneficiaries, it’s crucial beneficiaries take legal action to hold the executor accountable. In the same vein, if an accounting appears incomplete or inaccurate, beneficiaries have the right to object. Executors should keep meticulous records to support every transaction in case their accountings are challenged.
7. Distribute Assets According to Will
After the court approves the final accounting and issues an order for final distribution, the executor becomes responsible for distributing assets in the exact manner laid out by the will.
Distributions must be made within a reasonable timeframe — which is typically within one month of the court’s order, though timeframes may vary based on the estate’s complexity.
Beneficiaries may not receive the full inheritance they were left if the estate had significant debts or expenses. However, instead of taking the executor’s word for it, they should carefully review the final accounting to ensure their inheritance wasn’t unfairly or erroneously reduced.
If something doesn’t add up, beneficiaries can object to the accounting before the court issues its order.
What Happens if a Will Is Disputed?
Disputes over wills are not uncommon after someone passes away. Below, Keystone outlines the most common types of will disputes and how they are typically resolved.
Will Contests
When a will doesn’t accurately reflect the decedent’s known intentions, it may indicate the will is invalid. Wills that seem invalid can typically be challenged, provided certain conditions are met.
First, the person challenging the will must have what is known as standing, which is a financial stake in the outcome of the dispute. Additionally, they must have valid grounds.
Valid grounds for contesting a will in California include:
- Undue influence: The testator was manipulated or excessively pressured to create, alter, or revoke their will.
- Fraud: The testator was deceived into creating, altering, or revoking their will.
- Lack of capacity: The testator lacked the level of mental competence required to create, alter, or revoke their will.
- Forgery: The testator’s signature on the will, or the will itself, was falsified.
- Lack of due execution: The testator did not follow the legal procedure for creating, altering, or revoking their will.
- Mistake: The testator mistakenly signed their will, believing it to be another type of document.
The evidence needed to contest a will must be clear and convincing, showing the will is more likely than not invalid.
Because of the legal complexities involved, it’s wise to work with an experienced will contest attorney whether you are contesting a will or defending against a contest.
Ambiguities in Wills
Sometimes a will is valid but contains ambiguous language (i.e., terms that can be interpreted in multiple ways). When this happens, the executor will typically need to file a petition for instructions with the court to obtain guidance on how to interpret and apply the unclear term.
Suppose a will says, “My children should inherit my bank accounts.” If the decedent had both biological children and stepchildren whom he treated as biological children, the phrase “my children” may be considered ambiguous. Did the decedent intend to include both sets of children or only his biological children?
Even if the executor believes she knows what the decedent intended based on past conversations, she cannot unilaterally interpret the term without risking claims of favoritism. Filing a petition for instructions ensures the court — not the executor — makes the final determination. In doing so, the court may consider the executor’s testimony about those past conversations, as well as other evidence and the will itself.
FAQs: Wills After Death
Still confused about how wills are handled after death? Explore the frequently asked questions below for additional clarity.
If you are dealing with a specific legal matter surrounding a will or require guidance tailored to your situation, we recommend reaching out to our firm directly. Our legal team is standing by to provide assistance.
Who gets a copy of the will before death?
No one is entitled to a copy of a decedent’s will before their death — though many people do inform their estate planning attorney, nominated executor, or loved ones of their will’s location to ensure it can be easily found once they’re gone.
Remember, even if you were provided a copy of the decedent’s will before their death, this usually cannot be the will that's lodged with the court. The will that’s lodged with the court must be the original.
What happens if you can’t find the original will?
If the original will cannot be located, the law generally presumes that the testator intentionally destroyed it to revoke it. In other words, the court may treat the decedent as having died intestate (i.e., without a valid will). When this happens, the estate is distributed to the decedent’s legal heirs under California’s intestate succession laws, which are found in Probate Code sections 6400 – 6455.
That said, if you have a genuine copy of the will, you may be able to challenge the presumption by showing the will was never revoked. Because this process is often complex and closely scrutinized by the court, it’s wise to seek the guidance of an experienced probate attorney.
What is included in an estate when someone dies?
Put simply, an estate consists of probate assets — those that must pass through the probate process before being distributed. Probate assets typically include all property held in a decedent’s name that does not have a designated pay-on-death beneficiary.
If the estate carries debts, they are generally paid from these probate assets. Creditors can only pursue non-probate assets if the probate estate lacks sufficient funds to cover outstanding debts.
By contrast, assets held in a trust, jointly owned with a right of survivorship, or with designated beneficiaries are typically classified as non-probate assets. Because they usually bypass probate, they are excluded from the estate at the time of death.
What happens to a joint will when one person dies?
When one person dies, a joint will generally transfers all assets to the surviving testator, who is most often a spouse. After the surviving testator’s death, the remaining assets are distributed to beneficiaries according to the joint will’s terms.
It’s important to understand that while a joint will can usually be amended during both parties’ lifetimes — so long as they are mentally competent — it often becomes binding once the first testator dies. At that point, the will can no longer be revoked or changed.
For this reason, couples who want the flexibility to revise their estate plans after one spouse passes may wish to consider creating mirror wills instead of a joint will. A mirror will allows the surviving testator to make updates if circumstances change.
What happens if a will isn’t probated?
When a named executor fails to probate a will in a timely manner, it can create serious legal and financial complications.
First, by neglecting to initiate probate, the executor may be deemed to have waived their right to serve, which could result in the court appointing an administrator instead.
Second, until a will is admitted to probate — or an estate is declared intestate — no one has the legal authority to manage the estate. This lack of oversight can lead to asset depreciation, lost value for beneficiaries, and delays in transferring property, since estate property cannot legally be transferred without probate. Failing to administer an estate can also lead to drastic adverse tax consequences.
Although there is technically no strict deadline for opening probate, waiting too long can significantly limit your options. For instance, while probate could theoretically be initiated decades after someone’s death, doing so may be impractical: Assets may be difficult to locate, and crucial documents, such as deeds, may no longer be accessible, making the process of transferring property much more complicated.
Who can change a will after death?
A will generally cannot be changed after a person’s death, as wills automatically become irrevocable — meaning they can no longer be altered or revoked — once the testator loses mental capacity or passes away.
In rare cases, however, a court may reform a will to reflect the decedent’s true intentions. To do so, clear and convincing extrinsic evidence must usually exist showing both that the will contains a mistake in its expression and what the testator actually intended when the document was drafted.
Can a spouse change a will after death?
A surviving spouse does not have the authority to change their spouse’s will after they die. As previously stated, once a testator loses capacity or passes away, their will automatically becomes irrevocable and unalterable, even by their spouse.
What if the executor doesn’t follow the will?
When an executor does not follow the terms of a will, they are in violation of their fiduciary duties. As long as a will is valid, the executor is legally obligated to carry out its terms exactly as written. A failure to do so may be considered executor misconduct, which can result in removal from their role or even a financial penalty known as a surcharge.
Beneficiaries who worry about executors exercising too much control over their inheritance may ask: Can an executor decide who gets what? The answer is no. While an executor has significant authority in managing the estate, they do not have the power to determine how the decedent’s assets are distributed. They must adhere strictly to the terms of the will, and any deviation can expose them to personal liability.
Still confused on what to do with a will after someone dies?
We understand how navigating legal matters after a loved one’s death can feel daunting, but you’re not in this alone. Our probate attorneys focus exclusively on estate and trust litigation and administration, so we can manage the complex details of wills and probate for you — allowing you the space to heal.
Whether a will needs to be probated or challenged, we are here to provide guidance and protect your inheritance. Call us today to learn how we can help.
