Will: Decedent’s Estates With and Without


Testate Estates: Estates with a Will

A testate estate results when a person dies leaving a will.  The will controls who receives the estate property. Beneficiaries receive the property.

When the survivors know a will exists, the first step is to locate it. It is always wise to search for additional documents that may have changed or replaced the will. Documents called codicils amend or change wills and are common. They often become separated from the will. Search for Codicils in work places, with financial planners, banks holding safe deposit boxes, close friends and business associates.

If a safety deposit box was held solely in the decedent’s name, California Probate Code Section 331 allows a person who has a key access to the contents of the safe deposit box to take inventory of its contents and make a photocopy of estate planning documents such as wills, trusts and codicils contained in the box. The key holder must show proof that the owner or owners of the safe deposit box is dead. The key holder must also show reasonable proof of their own identity.  Probate Code Section 13104 controls what is reasonable proof of identity.

The party holding will must deposit it with the clerk of the superior court within 30 days of death.  Deposit with the court in the county where the decedent lived. This person must also mail a copy of the will to the person named in the will as executor. If they don’t know executor’s whereabouts they must mail a copy to a beneficiary named in the will. Government Code Section 70626(d) and Prob Code Section 8200(d) set the will deposit fee. No deposit is required if a petiton for probate with the will attached is filed within 30 days of death .

Intestate Estates: Estates without a will

Intestate estates result when a person dies without a trust or a will.  In this case heirs innherit the property and statute controls the order of distribution.  In California Probate Code Sections 6400, 6401 and 6402 specify intestate distribution.

General Administration of the Estate

Starting Probate

Filing a Petition for Appointment, a formal written request for appointment of a personal representative is the first step.  It is filed with the court in the county where the deceased person lived. Upon filing the Petition, the clerk schedules a hearing.  The clerk tells the person who filed the date, time and place. The petitioner must publish notice of the heaing in a news paper. That paper must circulate generally in the county of residence for the deceased person. They must also send written notice to all people who they know to have a legal interest in the estate. Giving proper notice is important because improper notice violates constitutional rights to due process.  If notice is imporper the court continues the hearing, giving the Petitioner a chance to do it right.

The hearing gives interested parties an opportunity to suggest alternative people to serve as personal representative. In the case of a will, as long as the person nominated has legal capacity, the court enforces those wishes. In other cases statute contols preference for the position. The Court sorts out conflicts and appoints a personal representative. Then the court issues letters of administration authorizing the personal representaive to act. The prevailing party at the hearing prepares the Letters of Administration.  The court clerk reviews and signs them. Generally, the court requires a bond for the value of the estate before allowing the clerk to issue the letters. The bond is an insurance policy that pays out if the Personal Representative takes estate assets or mismanages them.

Notifying Agencies

The law requires notifying the California Department of Health Services that someone has died under certain circumstances. This is necessary if the person or their spouse who died first received any Medi-Cal benefits.  Probate Code Section 215 discusses the obligations and procedures for giving notice.  The franchise tax board must also be notified of the death see Probate Code Section 9200 to 9205.

Probate In General