Did a deceased loved one leave behind a will? If so, the document will likely need to go through a validation process in order to be probated.
What does it mean to probate a will?
Suppose that a decedent had created and executed a will many years prior to their death. Now that the decedent has passed away, how does the decedent’s family use the decedent’s will to ensure that the decedent’s property passes to the decedent’s intended beneficiaries? And who decides that the decedent’s will is legally valid? In order to ensure that the decedent’s intent is honored, the will must be “probated.”
What Is Probate of a Will?
The meaning of probating a will is not as complex as it seems. In simple terms, probating a will means the will must be submitted to a probate court so that the court can (a) ensure the will is valid and admit the will to probate and (b) appoint someone known as an executor or administrator to oversee the management and distribution of the decedent’s assets.
During this process, if the court finds the will to not be the decedent’s actual last will and testament, or finds the will to be otherwise invalid, it could deny its admission into probate — which would mean that the decedent’s assets would have to be distributed to their heirs in accordance with the state’s intestate succession statutes or in accordance with the terms of a prior valid will.
What Is the Purpose of Probating a Will?
Wills have to be probated because the testator (creator of the will) cannot attest to the authenticity and validity of their will themselves, since they are deceased. Likewise, without the process of probating a will, anyone could submit a will to the probate court and claim that it belonged to the decedent, even if in reality it did not.
Who Is Involved in the Process of Probating a Will?
The process of probating a will is completed by the probate court; however, someone must bring the will to the attention of the court for the process to be launched. We provide a breakdown of the categories of people who potentially could find themselves involved in the probating a will process below.
Executors/Administrators
Executors of the estate are generally nominated by a testator through their will. If either the nominee refuses their appointment or the court decides that they are unfit to serve, an administrator of the estate could be appointed instead to oversee estate administration.
It is generally the person nominated as executor who files a petition for probate following the death of a testator, though, technically, any family member or interested party is entitled to start probate.
In the initial probate proceeding, the executor or administrator will not only be formally appointed to their role, but they can provide testimony and evidence regarding the authenticity and validity of the will if necessary.
Beneficiaries of the Estate
Beneficiaries are parties who are directly or indirectly named in the decedent’s will and stand to inherit from the decedent’s estate as a result.
They may be involved in the probating a will process if they are objecting to the will’s admission into probate, objecting to the choice of executor or administrator, or are providing evidence or testimony surrounding the authenticity and validity of the will. Many times, the person nominated as executor in a will is also named as a beneficiary.
Heirs
An heir is a person who would be entitled to inherit a decedent’s property under California’s laws of intestacy in the event the decedent died without a valid will. Heirs are usually close relatives of a decedent, such as their surviving spouse, child, grandchild, parent or sibling.
Whether or not an heir is mentioned in the decedent’s will, they could have a financial stake in the estate. This is because if a will’s admission into probate is denied, it’s possible estate assets will pass to the decedent’s heirs instead of to their beneficiaries. For this reason, heirs can also file a formal objection to the admission of a will into probate, and provide evidence and testimony to support their claim.
Creditors
Many people are surprised to learn that creditors can open probate of a will if the decedent had owed a debt. This is because the debt causes the creditor to have a financial stake in the estate.
Just because a debtor has died, it does not mean the creditor to whom the debt is owed is not entitled to collect repayment from the decedent’s estate. In fact, before any of the decedent’s assets can be distributed to beneficiaries and heirs, their verifiable debts must be paid.
What Happens When a Will Is Probated?
When a will is probated, the court will examine evidence to make its determination about the authenticity and validity of the will. This is the time during which interested parties — such as beneficiaries and heirs — will have an opportunity to file an objection to the will being admitted to probate.
It should be noted that whoever opens probate of the will has a responsibility to provide notice to interested parties about the initial probate proceeding, as well as publish notice of the proceeding in a local newspaper. Failing to do this could prolong probate, delaying when beneficiaries and/or heirs ultimately receive their inheritances from the estate.
What Happens When a Will Is Successfully Admitted to Probate?
If the court grants admission of a will into probate, it means that it found the will to be the valid and the authentic last will and testament of the decedent. At this point, the court-appointed personal representative can begin the process of estate administration, which consists of everything from estate accounting to paying the decedent’s creditors and taxes, to distributing estate assets to beneficiaries.
What Happens When Admission of a Will to Probate Is Denied?
If the court decides not to grant the will admission into probate, it means that either the decedent’s estate assets will need to pass to their heirs through the process of intestate succession (which is laid out in Probate Code sections 6400-6414) or to estate beneficiaries under a prior version of the decedent’s will (if such a document existed and was valid).
What Happens If the Validity of a Will Is Challenged After Its Admission Into Probate?
Once a will is admitted to probate, it is still possible to have it set aside and to revoke the existing probate, so long as the 120-day window for contesting a will has not elapsed. Though it’s important to keep in mind that bringing a will contest after the will’s admission to probate is generally a much more expensive and drawn-out process than objecting to a will’s admission into probate. Furthermore, the will must meet one of the grounds for contesting a will.
We always recommend for anyone who is involved with an estate — whether as an executor/administrator, beneficiary or heir — to speak with a probate lawyer immediately upon finding out that the testator has died, so in the event legal action needs to be taken, it can be taken in a timely and effective fashion.
FAQs About Probating a Will
While the process of probating a will is relatively straightforward once you understand it, it can seem daunting if you have no experience with it. This is why we’ve dedicated a section of our post to addressing some of the most commonly asked questions about probate of a will.
Do you have to probate a will in California?
Generally, if a decedent’s assets exceed your state’s minimum probate threshold (for California, the 2023 threshold is $184,500), then a decedent’s will must be probated. Estate’s worth less than the threshold amount can utilize a Small Estate Affidavit for financial assets or a Petition for Succession to Real Property for real estate to avoid a formal probate. In certain circumstances, even estates valued higher than the minimum threshold can use a probate avoidance mechanism to avoid a formal probate. For example, if all the decedent’s property will pass to the decedent’s surviving spouse, the surviving spouse may file a Spousal Property Petition to confirm his or her interest without opening a formal probate.
Can a will be probated in another state?
A will can only be used to open probate for a decedent in the state where the decedent resided, or in a state in which the decedent held real property. If you are an executor or administrator, who, for the sake of convenience, would prefer to probate the will in your state of residence as opposed to the state in which the decedent had resided, we regret to tell you that this will not be possible.
If you cannot commit to regularly traveling to the decedent’s state of residence to perform your duties and attend probate proceedings, your best bet would be to refuse your appointment. If you keep your appointment but fail to serve diligently and ethically, it could be regarded as fiduciary misconduct — an offense for which you potentially could be removed and surcharged
What is probate court for a will?
There is no such thing as “probate court for a will,” per se. Probate court broadly refers to the branch of the court system that oversees cases surrounding decedents’ estates and trusts, as well as surrounding elder, dependent adults, and minors (such as guardianships, conservatorships, and powers of attorney).
And yes, probate courts also handle probating a will.
Can a copy of a will be probated?
Under limited circumstances, a copy of a will may be able to be probated. However, when the original will cannot be located, the court will presume that the decedent intended to destroy the will. In order to rebut this presumption, the proponent of the will has a difficult burden of proving, with evidence, that the original will was not, in fact, destroyed and that the decedent still intended the will to serve as their last will and testament.
When an original will cannot be located, the court will likely order for the decedent’s assets to pass down via intestate succession.
Can you probate a will before death?
The prospect of stopping family inheritance disputes before they’ve had a chance to start brings many to question whether probating a will before death is possible.
Sadly, while a handful of states do make it possible to probate a testator’s will before they’ve died, California is not one of them.
Can I probate a will without an attorney?
It is certainly possible to probate a will without an attorney; however, it is advisable to have an attorney in the event arguments need to be presented in favor of or against the will being admitted to probate, especially if the will in question is complex.
Do you need a death certificate to probate a will?
Technically, you do not need to attach a death certificate as part of a petition for probate in California; however, from a practical perspective, it will be virtually impossible for you to administer a probate estate without a death certificate, as the document will be required before you are permitted access to most of the decedent’s assets.
How long does probating a will typically take?
The length of the probate process from the time the will is probated to the time estate assets are distributed can be anywhere from six months to a year or longer after the date of the initial probate proceeding.
Anytime there are disputes over the will document, problems with the executor or administrator, or property disputes related to estate assets, the probate process could be prolonged even more.
Have Questions or Concerns About Probating a Will? We’re Here to Help.
What is meant by probating a will? What determines if a will goes to probate? Why might a will be denied admission into probate? What if you want to challenge a will that’s already been authenticated by the court? It is normal to have questions like these if your loved one recently died leaving behind a will. Luckily, our probate attorneys are available to help you navigate the complex probate process with ease. Request a free consultation with us today to learn more.
