Probate is the field of law that determines how an estate must be divided. Each state has its own laws and statutes requirements to determine if and how an estate must be probated. The probate court will supervise the process when a deceased person (a decedent) leaves assets to distribute, such as bank accounts, real estate, and financial investments with or without a will. The probate court provides the final ruling on the division and distribution of assets to beneficiaries.

In many cases, the decedent has established documentation, which contains instructions on how their assets should be distributed after death and designates in such documents who oversees implementing this process.  This involves collecting the deceased’s assets to pay any remaining liabilities on their estate and distributing the assets to beneficiaries. Where a decedent fails to establish such documents while alive, State law and the probate courts will dictate how the estate is administered and to whom assets get distributed to.

Probate With a Will 

A deceased person with a Will is known as a testator and he or she is deemed to have died “testate.” When a testator dies, the person designated as the executor under the Will is responsible for initiating the probate process. The probate process for a testate estate includes distributing the decedent’s assets according to the Will.

Probate Without a Will 

When a person dies without a Will, a person is to have died intestate. An intestate estate can also occur when a written Will is presented to the probate court and the probate court has been deemed the Will to be invalid. The probate process for an intestate estate includes distributing the decedent’s assets according to State law. State law does not allow for a blood-line heir to be disinherited.  That can only be done using a Will.

What Is The Probate Process?

A probate court proceeding begins with the appointment of an administrator or executor to oversee the estate of the deceased person. Such personal is typically called the “personal representative.”  The personal representative receives all legal claims against the estate and paying off the outstanding debts. Also, the personal representative is tasked with locating any legal heirs of the deceased, including surviving spouses, children, and parents. Then the probate court will assess what assets need to be distributed among the legal heirs and how to distribute them.

The probate process can take a long time to finalize and can become costly, therefore it is important to know whether a probate is required following the death of an individual. The more complex or contested the estate is the more time it will take to settle and distribute the assets. Furthermore, the proceedings of probate court are publicly recorded so avoiding probate would ensure that all settlements are done privately.

Note though that having a Will does not mean that probate is avoided, it just serves a roadmap for the probate court. There are several options involved with end of life planning to help avoid the probate process.

Disinheritance or receiving less than expected in a will or trust

Disinheritance is the act of intentionally excluding someone from inheriting your assets. Specific legal rules regarding disinheritance vary by state and spouses and minors may have protections. Disinheritance must be stated clearly and explicitly in a will or trust to avoid ambiguity and potential legal disputes, just excluding someone is not enough.

Contesting A Will Or Trust.

State law does not allow for a blood-line heir to be disinherited.  That can only be done using a Will or Trust. A person who contests a Will or Trust must be able to prove in probate court that fraud, diminished mental capacity, contractual obligations or other problems existed with the decedent’s estate plan that would invalidate the Will or Trust including any amendments.

People cannot contest decision to disinherit them or give them a certain amount simply because they believe it was unfair. There must be legal grounds for them to contest a Will or Trust, such as:

• They believe the decedent they are the heir to was not of sound mind when drafting the Will or Trust including any amendments.
• The Will or Trust including any amendments was not properly witnessed/executed.
• They suspect the decedent made the Will or Trust including any amendments under duress or undue influence.
• Factual error that resulted in the decedent leaving you out (for example, a disagreement over lifestyle choices. Such as, your parents disinherit you because they believed you were using illicit drugs or abusing alcohol and you can prove that you were not then you may be able to contest the Will or Trust).
• Elder abuse.
• Fraud.
• Forgery.
• Lack of due execution, which means the proper legal steps were not followed when the will was signed. Under California law, a will must be signed before two “disinterested witnesses” who are physically in the presence of each other and the testator.
• Mistake, such as the decedent mistook the document they were signing to be something else other than a will or trust.
• For a will to be revoked it usually needs to be destroyed, replaced or modified. For a trust to be revoked the process may be a little different than a will.

Not only must you have the legal grounds to contest a Will or Trust, you must also have standing. Persons with standing to contest a will or trust generally include, beneficiaries, heirs of the decedent or beneficiaries under the prior will or trust. The probate court is usually not flexible on the meaning of standing.

What to expect in contest proceedings.

If you have been kept out of a Will or Trust or you are to receive less than you expected and have the grounds to challenge it, a filing with the Probate Court making your claim must be made.  The probate court will schedule a hearing at which time you will be able to present any evidence you have supporting your claim. The probate court will then review the evidence and make a decision. If it can be proven the provisions of the document are invalid based on a legal ground, the probate court may order for the document to be voided. The decedent’s assets will either be distributed to their heirs in accordance with the state’s intestate succession statutes or to beneficiaries under a prior valid version of the document if the decedent has executed one. There is a deadline for contesting a Will once the probate process has begun and if you miss the deadline then you may not be able to contest a Will. Also, know whether a Will includes a “no-contest clause” which is especially important if you content that you are receiving less than you expected. A no-contest clause disinherits anyone who contests the Will and does not prevail in probate court in a Will contest.

What Should You Do?

Consider reaching out to a Trusts and Estates and/or Probate Attorney such as those at the Law Offices Of Jeffrey B. Kahn, P.C. We are always thinking of ways that our clients can save on taxes, trusts and estates planning, and probate matters. The tax attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), Los Angeles and elsewhere in California are highly skilled in handling tax and probate matters and can effectively represent at all levels with the IRS and State Tax Agencies including criminal tax investigations and attempted prosecutions, undisclosed foreign bank accounts and other foreign assets, and unreported foreign income. Also, if you are involved in cannabis, check out what our cannabis tax attorney can do for you. Additionally, if you are involved in cryptocurrency, check out what a bitcoin tax attorney can do for you.