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What About the Cases Where Someone Objects to the Will?

When that happens it is called a will contest. It can either be because of somebody claiming the will is invalid and the person essentially died “Intestate,” which means he or she died without leaving a will. In that case, the heirs will be determined by the probate code the heirs might be the children, or the spouse and the children depending on if the person was married and had any separate property.

The other kind of contest is when an objector offers an alternate will and claims that the will that was submitted in court was not the last will that the decedent had signed. In this case there would essentially be competing probate petitions, the first one seeking to have the first will admitted to probate and the second petition stating that the real true and valid last will and testament is what they are presenting. The court would have competing petitions that they would have to litigate, so anything like that would substantially add to the cost, expense and time for the matter to go on.

What Is an Uncontested Will?

Uncontested means that nobody questions the validity of the will, so everybody agrees that the will being presented is legitimate and there are no problems with it. It will obviously go through much smoother than a contested will, but all the timelines and steps would still have to be met.

There is sometimes an opportunity to waive the accounting that is normally required by the personal representative, so if everybody is fine with how it is, or maybe if it is a small estate, then they can just waive the accounting. This way the personal representative would not have to account for each and every nickel they were managing and they can just ultimately distribute the remaining assets to the beneficiaries. An uncontested probate in California lasts at least a year but it can drag on for many, many years if it is contested.

What Happens If There Is No Will At All?

This would come under the intestate succession rules, so depending on whether the person was married, single or had any children, the probate code would specify who the heirs are.

What Would Happen If the Will Was Missing or Cannot Be Found?

It would be a problem if there was some evidence that the person had a will, but no one could find it. I recently had a case where the person died and we had a copy of the will but not the original one. In a case like that, the copy would be submitted to the court with some other extrinsic evidence that tends to show that the person did have a will and did not destroy it or revoke it, because if they cannot find the original, then the presumption is that the decedent probably just tore it up or revoked the will.

The presumption of the revoked will can be overcome if there is any evidence that tends to disprove it, so we had to present some statements and affidavits from people saying that the decedent did state that he had a will and the will presented was his will and there was no evidence that he had actually revoked it.

If there was no other evidence to rebut the presumption that the decedent had destroyed his will, then the assets would be distributed under the intestate succession rules.

Are There Any Simpler Options for a Very Small Estate Left by a Relative?

Yes, there are. First of all, there would be no need for a formal probate if the total value of the estate was less than $150,000. This would be considered a small estate and the person who was entitled to inherit the assets would fill out something called an “Affidavit of Small Estate.” He would sign it under penalty of perjury and present it to the financial institutions that hold those particular accounts.

The affidavit of small estate must state that the person was deceased and more than 40 days had elapsed since the person’s death, there was no probate case going on, the value of the estate was less than $150,000 and the person signing the document is the person entitled to get the money.

The other abbreviated probate process is when a person is married and holds everything as community property with his or her spouse. In that situation the surviving spouse can file a Spousal Property Petition, which informs the court that the person has died, everything was held as community property, and that all community property be transferred to the surviving spouse. This does not require a full probate either, so those are the two abbreviated probate proceedings.

For more information on Uncontested Wills, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (949) 660-0007 today.



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