Common Probate Questions Asked to Our Probate Lawyers in California
We Answer Questions About Probate Litigation
If another party is denying your inheritance or if they are mishandling a loved one’s estate, then you may have to pursue probate litigation to ensure that California probate law will uphold the final wishes of the deceased.
Below are some of the questions from our clients that we commonly answer regarding probate litigation matters. Contact our San Francisco probate litigation lawyers today if you need experienced legal representation in contesting a will or trust.
- What is probate?
- What is probate litigation?
- Why would I contest a will?
- Can I handle probate without a lawyer?
- What is fiduciary accounting or duty?
- What are creditor’s claims?
- Codicils. What are they?
- So, what happens if a person dies without a will?
Probate is the legal process of administering a deceased person’s last will and testament or according to intestate law. Certain trusts only go into effect upon the death of the testator, and may therefore be part of a probate administration. California probate courts oversee probate administration and probate litigation.
Probate litigation is the term for a lawsuit when a party, such as an heir, beneficiary, creditor, third party or omitted spouse contests a will. Probate litigation also includes charges against fiduciaries of trusts or estates, or creditors’ claims against an estate.
There are several different reasons for contesting a will. For example, claims of undue influence and lack of capacity are common causes for probate litigation. Some individuals may argue that the will is defective, or that the estate trustee is breaching a fiduciary duty. If you are an omitted spouse or if your spouse leaves you less than required by California law, you may have a claim against the estate as part of your spousal rights.
A fiduciary duty is the obligation to act honestly, fairly and in good faith when handling the deceased person’s estate. There are multiple fiduciary duties that executors, administrators and trustees are legally required to follow, including keeping proper accountings of all investments, as well as money going in and out of the trust or estate. Violation of this duty or poor performance in administrating the estate may result in legal action by the estate’s beneficiaries.
Just as in all types of civil litigation, the law allows you to represent yourself in a probate proceeding. However, we strongly advise having a seasoned probate litigation lawyer handle your case to ensure that California probate law upholds your best interests.
Even in death, a person is liable for their debts. For example, creditors may bring claims against a person’s estate after their death to receive payment.
A codicil is a document that makes small changes to the terms of a last will and testament. An individual may use codicils when they want to amend their last wishes without having to create an entirely new will. A codicil will only be legally valid and enforceable if executed in the same manner as a will. Codicils are particularly useful upon remarriage, additional children born, or new property acquired by an estate.
If a person dies without a will, then California intestacy laws will dictate the division of their estates to the heirs at law. These laws will then distribute property and assets depending on the marital status, number of children and surviving relatives of the deceased individual.