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Attorney2
Attorney2, Attorney
Category: Estate Law
Satisfied Customers: 6437
Experience:  29 Years in General Practice and Estate Planning
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I am an attorney in Texas. I have a client who has been

Customer Question

My name is***** I am an attorney in Texas. I have a client who has been named as a beneficiary under a 2005 will where the decedent lived in California. We only have a copy of the will. The estate is very significant (maybe 50 million) and the attorney for the decedent in California tells there is no will known to the estate.
Can a copy of a will be probated under California law?
Submitted: 12 months ago.
Category: Estate Law
Expert:  Attorney2 replied 12 months ago.

Welcome and thank you for your question. Is the attorney for the estate saying the estate is in probate under intestate succession?

Customer: replied 12 months ago.
The attorney has simply stated that there is no will. No probate has been filed yet and we just found the copy of the will in Texas (former wife has copy). I would assume that it would proceed under intestate succession unless the copy could be probated.
Expert:  Attorney2 replied 12 months ago.

California will allow you to try to file the copy and the court will decide if they accept the copy. If you have a copy doe it show the attorney that prepared the will?

Probate Code -

DIVISION 6. WILLS AND INTESTATE SUCCESSION [6100 - 6806]

( Division 6 enacted by Stats. 1990, Ch. 79. )

PART 1. WILLS [6100 - 6390]

( Part 1 enacted by Stats. 1990, Ch. 79. )

CHAPTER 3. Revocation and Revival [6120 - 6124]

( Chapter 3 enacted by Stats. 1990, Ch. 79. )

"6124.

If the testator’s will was last in the testator’s possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator’s death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence."

http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=6124.

Expert:  Attorney2 replied 12 months ago.

John please accept my apologies there was a site glitch and I was kicked off.

This is the procedure for trying to get a copy admitted.

California Laws Regarding Lost or Destroyed Will

California Probate Code 6124 says:

If the testator’s will was last in the testator’s possession,the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator’s death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence.

Despite this, in accordance with California Probate Code 8223, a lost or destroyed will can be admitted to probate the decedent’s estate. The petitioner must provide enough evidence to overcome a rebuttable presumption that the testator intended to revoke or destroy his/her will. The petitioner must provide sufficient evidence about the testator’s desires concerning the administration of his/her estate.

The petition for probate of a lost or destroyed will shall include a written statement of the testamentary words or their substance. If the will is proved, the provisions of the will shall be set forth in the order admitting the will to probate.

How to Prove a Will is Lost

There are three types of wills:Attested Wills, Holographic Wills, and Statutory Wills. A will is “proved” and will be admitted into probate if it is prepared and validly executed under the laws of California. The testator must be an adult (18-years old or older) and have the testamentary capacity to draft and execute a will for it to be valid.

Attested wills are self-proving s olong as it is signed by a witness under the penalty of perjury. A holographic will can be admitted into probate if the testator’s handwriting can be proved by the testimony of at least one witness. A statutory will is also self-proving so long as it is signed in the presence of two witnesses.

Under California law, once a person passes away, any interested person may begin proceedings for the administration of the estate of the decedent by a petition to the court for probate of the decedent’s will even if it is lost, destroyed, or beyond the jurisdiction of the state. If the original of the instrument being offered for probate has been lost or destroyed, the petition for probate shall include a declaration about the circumstances of the inability to file the original instrument. If a lost or destroyed will is admitted to probate, a copy of the provisions of the will must be attached to the order for probate.

When probating a lost will in California, the moving party will need to prove, to the court’s satisfaction, that the will was not revoked.The drafting attorney can be contacted as well as any witnesses to the will’s execution in order to provide testimony about the validity of the will.

What happens if there is no copy and the California will is simply lost? In this situation, the property will most likely pass to the heirs under California’s laws of intestate succession, meaning the decedent’s property will be distributed equally to whomever are the decedent’s natural heirs or lineal descendants.

Probating a Lost Will in California – Filing the Petition

The Judicial Council form DE-111Petition to Probate and supporting documentation must be used when filing a request for order to probate a lost will. The Petition must contain detailed information setting forth the terms of the lost will and/or codicil. The petitioning party will need to provide documentation and supporting evidence to prove to the court that the lost will has not been revoked. They will also need to offer clear, cogent, and convincing evidence of the authenticity of the contents of the lost will. A copy of the will must be submitted with the petition. In addition, a copy of the petition and the attachment must be sent to each person entitled to notice such as the decedent’s heirs and beneficiaries. In addition, the moving party must attach an “Order for Probate” that will be completed resulting from the hearing of the petition.

https://www.apeopleschoice.com/probating-a-lost-will-in-california/

Expert:  Attorney2 replied 12 months ago.

Please do not hesitate to ask me any additional questions that you may have with regard to this matter. If you would be kind enough to rate my service positively so I will receive credit for my work I would appreciate it. Thank you for using JA!

Expert:  Attorney2 replied 12 months ago.

Please ignore the premium services offer.

Expert:  Attorney2 replied 11 months ago.
Are you still with me?
Expert:  Attorney2 replied 11 months ago.

I wanted to follow with up with you to see if you have any additional questions for me. You may not be aware that the site does NOT credit the site attorneys for their work unless the customer rates our work positively. Thank you for your consideration.