The Probate of A Will in California

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17th Nov 2012

As a probate lawyer in Orange County, I am very familiar with the process of probate with or without a will.
As you may know, probate is the process where after death the instructions of the Will are carried out, if there is a will.  For the purposes of this blog post, we will discuss the probate of a will, as we have in many other posts discussed what happens when there is no will and the probate process goes through the courts.
Probate is the process where after death the instructions of the Will are carried out. When a will is submitted for probate there is a legal process which establishes the genuineness of the Will. It is done by the Probate Court in the county where the testator resided at the time of death. Here is some information that needs to be submitted:
1. The applicant’s residence;
2. The name, domicile and date of death of the decedent;
3. The names and addresses of the decedent’s spouse, heirs, and any person named to serve as Executor;
4. The ages of any minor heirs; and
5. The names of the testator’s children when the Will was made and the names of children born and adopted after the Will was made, or their children, if any.
When the applicant decides to file the will for probate, they must also file a death certificate (and original with a raised seal) for the deceased. There is typically a filing fee involved as well. Once the Will, application and death certificate are filed, the Probate Court will review the papers, and if there are no irregularities or objections, the will is admitted for probate.  
Qualifying the Executor
Now that the will has been admitted, the Court will issue letters of  testamentary to an Executor who has properly qualified to serve. The Executor named in the Will qualifies to serve by filing a form affidavit in which the Executor agrees to perform his or her duties as assigned by the will.  Now they may perform their duties and the heirs should be able to get their assets as stated in the will.
What happens if the Will is not properly executed?
The Probate Court of the court will advise the personal representative as to the proper procedure in order to allow the Will to be admitted to probate. This procedure normally involves a formal hearing before a Judge of the Superior Court.
Is it necessary to send copies of the Will to the beneficiaries?
Once the will has been admitted to probate, the Executor has 60 days to mail all beneficiaries a notice that they can be provided with a copy of the Will, as well as a notice giving the specific date and place the Will was entered into probate.
What is the Executor/Administrator required to do?
This role is required to collect and safeguard all of the assets of the estate and eventually to pay the debts of the decedent, any taxes due, and be able to provide an accounting of his actions to the beneficiaries or heirs.
Is an attorney necessary in estate administration?
Generally speaking it is very difficult for a person who is not a lawyer to correctly follow the required procedures in administering an estate. The personal representative selects the attorney for the estate. You could decide to call your attorney to get further advice as to specific obligations.
Where does the Executor/Administrator obtain the funds to pay debts?
The Executor may, in most cases, withdraw up to one-half of the funds in the decedent’s bank accounts. They may create an estate bank account to handle paying the debts and heirs as said by the will
For more information on wills, estate planningor probate contact Attorney Dwight Tompkins. If you enjoyed reading this post please comment below. If you need a probate or estate planning lawyer please don’t hesitate to call.

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