Probate Administration is a court process that confirms and distributes your assets when you pass away with a Will or with no Will. If you had no Will then your Estate passes by intestate succession. Probate is required in most states and many countries.
At Coastal Pacific Law we help clients with probate in North County, San Diego, California and/or Austin, Texas. Generally, the probate process takes around a year and can be different based upon the assets in the Estate.
If there was a Trust as part of the Estate then you will need to do a Trust Administration. Until the probate process is complete it will not be possible to use the bank accounts, sell the property, etc. depending on title at time of death. If you have any question or would like to start this process then please contact us.
What is a Will?
A Will is a document that you create that gives away your property but does not change the title or beneficiary designations to any assets. A Will does state your intent, but at the time of your death, your Estate is going to have to go through probate court. A Trust is different than a Will because with a Trust you are generally changing the title or beneficiary designations to assets and at the time of your death they will go to the Trustee and will not normally be subject to the probate process.
California Probate Code allows four types of wills to be probated:
- Witnessed Will;
- Holographic Will;
- California Statutory Will; and
- Will in compliance with the Uniform International Wills Act.
What Constitutes a Valid Witnessed Will?
The California Probate Code Section 6100 specifies that a Witnessed Will must:
- Be handwritten or typed
- Be signed by:
- the testator;
- In the testator’s name by some other person in the testator’s presence and by the testator’s direction; or
- By a conservator pursuant to a court order to make a will under Section 2580.
- Be witnessed by being signed,
- during the testator’s lifetime;
- by at least two persons each of whom
- Being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will; and
- Understand that the instrument they sign is the testator’s will.
- It is important to note that witnesses must be:
- disinterested, i.e. not beneficiaries of Will
- adults, i.e. in the age of the majority, 18 in California
If all of these elements are not met then the Will could be a holographic Will or could be admitted as extrinsic evidence for the Court to make a determination of the document.
What is a Holographic Will?
Under California Probate Code Section 6111(a) a “holographic” will is defined as a Will that is:
- in the handwriting of the testator, i.e. the creator;
- signed by the testator; and
- not required to be witnessed.
If you are unclear whether a Will is a holographic Will then you can contact us with any questions.
Additionally, under Probate Code Section 6111(b), “extrinsic evidence is admissible to determine whether a document constitutes a will pursuant to Section 6110 or 6111, or to determine the meaning of a will or a portion of a will if the meaning is unclear.”
What is a California Statutory Will?
A California statutory Will is a pre-printed form in which the creator of the Will, i.e. testator, fills in the blanks. The testator should fill out the form completely and then sign the Will in the presence of two witnesses that are not beneficiaries of the Will. The witnesses sign the Will in the testator’s presence. This type of Will does not offer as many customization as a formal attested will, but can give peace of mind to you if you have no other choice.
What is a Will that Complies With the Uniform International Wills Act?
The Uniform International Will Act (the “UIWA”) is incorporated into the California Probate Code under Section 6380 after its ratification by the Senate in 1991. The Convention on the Form of an International Will was drafted and presented in 1973. As stated by the drafters, “[t]he purpose of the Washington Convention of 1973 concerning international wills is to provide testators with a way of making wills that will be valid as to form in all countries joining the Convention.”
The Convention was presented to the states after ratification by the Senate for acceptance as the UIWA and was then adopted by California. The UIWA states that a will that complies with its requirements is valid irrespective of:
- where the Will is made; or
- the location of the assets.
Additionally, a Will shall be valid regardless of the creator of the Will’s:
- domicile; or
UIWA requirements for a valid international will include:
- It is in writing:
- in any language;
- written by hand;
- typed or printed by other means; or
- it need not be written by the testator personally.
- Testators must declare in the presence of two witnesses and a person authorized to act in connection with international wills:
- that the document is their will; and
- they know the contents of the will.
- The testator must:
- sign in the presence of the witnesses and the authorized person;
- acknowledge a previous signature; or
- another person must sign at the direction of the testator and the testator’s inability must be noted on the will.
- The witnesses and authorized person must:
- sign the will in their individual capacities in the presence of the testator; or
- if the testator has already signed, acknowledge the signature and sign in their capacities.
What is a Pour-Over Will?
I did not include Pour-Over Wills as the four types of Wills because it generally not probated and comes as a part of your Estate Plan and your Trust, as a separate document. It is a “Will” and essentially states that if any assets are not properly transferred to your Trust or Trusts at the time of your death that it was your intention for it to be a part of your Trust Estate.
A Pour-Over Will is important to avoid probate in California if there was an asset that was left out of the Trust Estate. If an asset of a certain value was left-out of the Trust then Coastal Pacific Law would lodge the Pour-Over Will and file a “Heggstad Petition” under California Probate Code Section 850(a)(3). Then the Court would grant an Order stating that the property has been transferred to the Trust avoiding and probate process. This Order would be used to gain control of the assets so that they may be distributed to the beneficiaries.
What is a Codicil?
Once you have drafted a Will then you may have some changes at a certain point in time that you wish to incorporate, such as, changing the Executor or a beneficiary. At that time it may be appropriate to do a Codicil. However, it might be appropriate to draft a new Will. Please contact us if you have any questions.
What is an Executor, Administrator or Trustee?
An Executor is a person nominated in a Will or by a family member that is administering the probate of an Estate.
An Administrator is a person that is nominated and is the immediate family of the decedent that is administering the probate of an Estate.
A Trustee is nominated in a Trust to manage the assets of a Trust. During your lifetime if you created the Trust then you are most likely the Trustee, unless you resigned or it is a type of trust, such as, Irrevocable. Once you pass away then the people you choose will be the Successor Trustees. Normally, these people are inheriting but they do not have to inherit.
What if There Was a Foreign Will?
A foreign Will is defined as one that was not created in the state where the decedent’s property was located. For example, if you had property in California and in Mexico at the time of your death. During your lifetime you had a Will created in California, as well as in Mexico. When you pass away if a probate was filed in California, then the Mexican will would be considered to be a foreign will.
If you own property in California and in Austin and you create a Will in each state. If you pass away and a probate is started in California then the Austin will is considered to be the foreign Will in California.
However, if you had a Trust then it is likely that Trust is sufficient to hold properties in all states without multiple documents. For example, if you have a California trust then you can put in property from other states and avoid probates in those states as well.
What if I Cannot Find the Will?
If you cannot find the Will but you know that one was executed we are happy to contact to attorney that created the Will to obtain a copy. Also, it is very common that once you start going through the house, etc. that the Will is going to turn up. Unfortunately, if a Will cannot be found then it is possible that the probate process must be done without a Will.
What Does Intestate Mean?
Intestate succession means the distribution of your assets if you did not have a Will at the time of your death. Instead of the Judge looking to the Will to guide the distribution of your assets they will look to the California Probate Code starting at Section 6400. If you would like help figuring out who gets what then please contact us.
Additionally, the Court will use the Probate Code to determine who was in charge if there was no Will. There are rules that govern this. If you would like to be appointed as Administrator of the Estate, it is likely that you need to be a relative, with exceptions, and must be approved by all other beneficiaries.
Are there Assets That Do Not Generally Go Through Probate?
The following is a list of assets that generally do not have to go through probate; however, there may be exceptions depending on the situation:
- Life insurance proceeds – normally life insurance proceeds have beneficiary designations that will not need to be probated in most cases.
- Joint Tenancy and Community Property with Right of Survivorship or Transfer on Death – If real estate, bank accounts, and other assets are held in joint tenancy, tenancy by the entirety, community property with right of survivorship, or have a transfer on death designation then they may not require a probate.
- Trust – property held in a living trust and that is recorded in trust title does not need to be probated. In order to confirm title you can contact the San Diego County Recorder’s Office.
- Retirement Accounts – funds in an IRA, 401(k), or retirement plan for which a beneficiary was named do not require a probate in most cases.
- Transfer on Death Accounts may not require a probate, including:
- funds in a payable-on-death (POD) bank account;
- stocks or other securities held in a transfer-on-death (TOD) account; and
- real estate or vehicles held with a transfer-on-death (TOD) deed or title document.
The only way to determine with certainty if the document will avoid probate is to locate the document and review it for the title at time of death and who will receive it. If you have any questions please feel free to contact us.
What if There Was Only One Bank Account in the Estate?
If there was only one bank account in the Estate at the time of death then the first thing that you should do is figure out how title of the bank account was held. If it was in Joint Tenancy or there was a Transfer on Death beneficiary then the bank needs the proper paperwork, including, a death certificate and any of your requested information to transfer the account.
If the account was not held in Joint Tenancy or did not have a Transfer on Death Beneficiary but it was under the amount of $150,000.00 at time of death then you might be able to use an Affidavit as specified under California Probate Code 13100. Generally, each banking institution has its own form that it prefers but it is important to do everything that the institution asks.
The 13100 Affidavit does not apply to real property. If real property was valued under $150,000.00 at he time of death then either an Affidavit Re Real Property of Small Value or Petition to Determine Succession to Real Property will be filed with the Court. A link to the Court’s website, can be found, here.
What if There Was Only One Piece of Property in the Estate?
If there was one piece of property in the Estate then it depends on the value at the time of death if a probate will be required. If real property was valued under $150,000.00 at he time of death then either an Affidavit Re Real Property of Small Value or Petition to Determine Succession to Real Property will be filed with the Court. A link to the Court’s website, can be found, here.
What if There Was a Trust But the Assets Were Left Out?
If an asset of a certain value was left-out of the Trust then Coastal Pacific Law would lodge the Pour-Over Will and file a “Heggstad Petition” under California Probate Code Section 850(a)(3). Then the Court would grant an Order stating that the property has been transferred to the Trust avoiding and probate process. This Order would be used to gain control of the assets so that they may be distributed to the beneficiaries.