There are statutory and procedural probate guidelines in each state that must be followed to complete the probate of a will.  Probate actions are usually initiated in the court system where the deceased individual resided prior to their death.  

Common procedure.

Common practices by Hollister probate attorneys include 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. 

Probate hurdles.

The efficient probate administration of a will does not come without challenges.  Will challenges have legal limitations in most states to assure that a person’s estate plan will be protected. Common objections to wills can include:

  • Lost will, or outdated version.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 clear. 
  • Lack of due execution. A will may have been written and signed without adherence to state-specific requirements for signing a valid will, to include witnesses and attestation clauses.  
  • Forgery. Individual claims that the signature on the will is not the decedent’s, and consideration is made when probate attorneys were not involved in drafting, or signing of the will, or unethical individuals are involved. 
  • Lack of testamentary capacity. Claims that challenge the ability of the testator to understand  what they were doing when they signed their will, perhaps in cases of Alzheimer’s, or similar mental state alterations.  
  • 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. 
  • Undue influence. A claim that the testator signed their last will under influence, or pressure from another party.  

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. 
  • 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. 
  • 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.

Seek California Probate Attorneys.

Probate actions can seem overwhelming without the assistance of an experienced California probate attorney.  They will work with clients to ensure estates are administered according to the decedent’s last wishes.