Trust & Probate Litigation Attorney

Probate With a Will

by | Nov 22, 2021

When a person passes away with a valid will, they are said to have died “testate” (as in “last will and testament”). The first step will be to determine if formal probate proceedings with the courts are necessary.

What Assets Are Subject to the Will?

Often a decedent will have arranged for all their property to be inherited by specific individuals through exceptions to formal probate proceedings with the courts. Unless an exception applies, your loved one’s assets will all generally descend through their estate. Common exceptions include property that is held in joint tenancy (e.g., certain real property, some bank accounts), property that has a designated beneficiary (e.g., life insurance or retirement accounts), or property that is held in a trust. Often, a will contains a “pour-over” provision, which designates a trust which the decedent’s assets go to automatically. These exceptions are more common when a person has proactively prepared for their passing by creating a will.
Sometimes, a decedent passes away with few assets, or with most of their assets automatically passing to others through exceptions. If a decedent did not leave real property to their estate and left assets worth less than $150,000.00 to their estate, then they are said to have left a “small estate”. Small estates are also exempt from the formal probate process, even though the terms of the decedent’s will govern what happens to the small estate’s assets.

Potential Issues

Many potential issues may arise, even if a decedent had prepared a valid will. Common issues might involve whether a will is valid, who is qualified to serve as the executor of the estate, whether property belongs to the estate or descends outside of the terms of the will, whether the decedent validly owned certain property in the first place, whether a gift from the decedent during their lifetime was an “advance on a relative’s inheritance, dealing with the decedent’s creditors, whether an executor violates their duties, and whether the decedent was a victim of elder abuse or homicide.

Contact Our Experienced Probate Litigation Team

Our experienced team of attorneys brings a broad scope of experience to address the potential gamut of issues you may be facing in your probate matter. We strive to provide effective, practical, and timely results. We aim to resolve issues before resorting to litigation, if at all possible, in order to save our clients money and to allow all the parties to move forward with their lives on amicable terms. However, when litigation becomes necessary, we will wield the sword of justice to protect your interests and defend your loved one’s legacy.

If your loved one has passed away and you’re feeling overwhelmed, we can help. Every situation is unique, and it is best to discuss your case with an experienced attorney.
Contact us today by calling (888) 308-1261 to schedule your consultation.

California Statutes Regarding Wills (Cal. Prob. Code §§ 6100-6390)
California Statutes Regarding Probate of a Will (Cal. Prob. Code §§ 8200-8272)
California Statutes Regarding Executors (Cal. Prob. Code §§ 8420-8425)
California Statutes Regarding Small Estates (Cal. Prob. Code §§ 13000-13211)
California Statutes Regarding the “Slayer Rule” (Cal. Prob. Code § 250)

DAVID J. HALLSTROM, ESQ.
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