Montclair California probate attorneys are instrumental for a smooth administration of a person’s estate.

In the United States, statutory and procedural guidelines of each state must be followed to complete the probate of a will.  Estate planning can reduce complications that may drag out the process and can be effectively handled with the help of experienced legal counsel.  Probate actions are usually initiated by filing an original will with the court in the venue where the deceased individual resided prior to their death.

Common probate actions.  Common practices include an attorney filing the original will, a petition to the court, a copy of the death certificate and other relevant documents in the proper court jurisdiction to begin the process and authenticate a will.  Granting probate is the first step in the administration of a person’s will, so a deceased’s wishes and division of assets can be accomplished. Montclair California probate attorneys are resourceful in probate actions.

Relevant legal terminology. Probate actions utilize specific legal terminology that grieving individuals may not readily understand.  Familiarization of these terms is important to understand the concept of the distribution of estate assets and payment of outstanding debts.  When children are involved, wills may lay out a plan for their care as well. Experienced Montclair probate attorneys can go over the meaning of the terms that most likely impact a specific case outcome in the probate courts.

  • Decedent: A person who dies and whose estate is going through probate.
  • Executor, or personal representative: The person in charge of carrying out the instructions in the will on behalf of the decedent.
  • Administrator: When a person dies without leaving a will, a court-appointed executor will be named.
  • Intestate: When someone dies before preparing a will.
  • Intestacy: State laws specific to the distribution of estate assets.
  • Letters testamentary: Written documentation from state probate court authorizing the executor to start carrying out provisions outlined in the will.
  • Notice of probate and notice to creditors: Notices that the executor has to submit, in writing, to the heirs, beneficiaries, distributees, and creditors.
  • Small estate affidavit, summary probate and/or summary administration: Documents or processes that streamline state probate actions. Estates below a certain financial value (depending on your state) may be eligible and it may have significant impacts to residuals when probate fees are lessened.

Probate hurdles.  Major hurdles for efficient probate administration of a will may include an incident of lost will documents, or contested wills for lack of due execution, forgery, lack of testamentary capacity, or undue influence.  Will challenges have legal limitations in most states to assure  that a person’s estate plan will be protected. Interested parties should contact a Montclair probate attorney about common objections to wills that can be successful including:

  • Lost will, or outdated version. Original wills may be misplaced, or codicils to a will may not be available, leaving the court to decide what is valid, but it must be established that the will was not revoked, execution was proved, and the provisions of the will are clearly and distinctly proved by credible witnesses, or a copy of the will proved to be true.
  • Lack of due execution. This is an when a will was written and signed without adherence to state-specific requirements for signing a valid will, to include witnesses and attestation clauses.  There are occasions where nuncupative, or holographic wills are made, subject to scrutiny in accordance with state-specific probate laws.
  • Forgery. Individual claims that the signature on the will is not the decedent’s, and consideration is made when Montclair probate attorneys were not involved in drafting, or signing of the will, or unethical individuals are involved.
  • Lack of testamentary capacity. This claim is based on the fact that the testator did not know what they were doing when they signed their will, perhaps in cases of Alzheimer’s, or temporary altered states caused by treatment, or sickness.
  • Due execution. The initial burden is on the proponent of the will to show that it was duly executed in accordance with the state probate laws. The court also has the obligation to determine that the will was duly executed. In cases where the will’s execution was supervised by an attorney, there may be a presumption of compliance and most wills contain what is called an attestation clause which describes what happened, who was present and what was said in a manner intended to comply with state statutes.
  • Undue influence. When it is proposed that the testator signed the will under influence, or pressure from another party and that the will was not the true intention of the person signing it, but a product of their inability to resist the influence. 

Asset distribution.  Within a will, or trust document, distribution of assets may be discussed and completed through per capita distribution,  per stirpes distribution, or by right of representation.

  • Per capita distribution: In per capita distribution, all members of a particular group receive an equal share of the distribution. That group can be a decedent’s children, all combined descendants, or named individuals. Under per capita, the share of any beneficiary that precedes a person in death is shared equally among the remaining beneficiaries. Within a beneficiary designation, per capita typically means an equal distribution among a person’s living children.  
  • Per stirpes distribution uses a generational approach. If a named beneficiary precedes a person in death, then the benefits would pass on to that person’s children in equal parts. Spouses are generally not part of a per stirpes distribution. Basically this is a collective right to inherit property that the originally-intended beneficiary would have taken if they were alive at the time of the decedent’s death.
  • By right of representation means that unless a decedent specifically chose a different method of distribution in their last will and testament, or trust document, a person’s assets will automatically be distributed according to the “by representation” method.

Montclair California Probate Lawyers.

After in individual in Montclair dies and their estate needs to be administered according to their wishes, probate actions can seem overwhelming without the assistance of an experienced Montclair California probate attorney.