Last WillIf someone disagrees with the terms of a decedent’s will they must object at the hearing and/or file a written objection with the court. They may also file their own petition for probate if they are seeking to appoint a different person as personal representative. There are limited grounds on which a person may object to a will. The court may request the original petitioner to respond to the objection. The court will then determine if the objection is valid. In limited cases there may be a trial to determine the validity of the will and its terms.

What Is The Basis For A Will Contest In California?

In California, a person may contest a will for any of the following reasons:

  • Lack of due execution – meaning the will was not properly signed or witnessed
  • Lack of testamentary intent – meaning the decedent did not understand the purpose of the document was to transfer assets upon his or her death
  • Lack of capacity – meaning the decedent was not in their right mind, and/or was not at least 18 years old
  • Undue influence, fraud, menace, or duress – meaning the decedent must have signed the will freely and without being forced or tricked by another person
  • Mistake – meaning the decedent must understand that the document they are signing is a will and not another document
  • Revocation – meaning the decedent must not have revoked the will by executing a new will or by destroying the prior will
  • Forgery – meaning a person must not have forged the decedent’s signature

How Do We Find Out If There Even Was A Will?

Determining whether a decedent had a will can sometimes be challenging and can require some investigation. Wills are not recorded or stored in a particular place. To find a will you must look through a decedent’s personal belongings, determine if they owned a safe deposit box which may contain the will, and contact any attorneys you may find referenced in the decedent’s belongings. It is also helpful to interview people close to the decedent to determine whether they know if decedent had ever discussed a will. Reasonable efforts must be taken to find a will, but sometimes, a will cannot be found and/or never existed.

Who Is Legally Responsible For Handling The Probate Process?

Any person interested in the decedent’s estate may petition the court to initiate a probate administration. The probate code gives priority to certain persons. If a will exists and an executor is nominated in the will, the nominee may serve as personal representative. However, the nominee is not legally required to serve. They may decline the nomination and permit the successor nominees to serve instead. If there are no successors nominated then the probate code gives certain beneficiaries the right to serve and/or nominate a personal representative. If there is no will then the probate code gives certain heirs the right to serve and/or nominate a personal representative. Even creditors may initiate a probate administration if no beneficiaries or heirs are able or willing to do so. Once a person is appointed as personal representative they are legally responsible for completing the full administration.

Is It Necessary For The Personal Representative To Live In The Decedent’s State?

It is unnecessary for the personal representative to live in the decedent’s state. However, if a personal representative is a non-California resident then it is common practice for the court to require the personal representative to obtain a bond.

What Are The Main Duties Of A Personal Representative Throughout Probate?

The primary duty of the personal representative is to discover, secure and protect the assets of the estate. They must determine who may receive the assets, and whether they are considered a beneficiary, heir or creditor. They must notify all interested parties about the ongoing administration, including all known or potentially known creditors. And, they must ensure all tax returns are filed and tax debts are paid.

For more information on Probate Law in California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 484-0078 today.

Kelsey Quaranto

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