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Help with validity of copy of a Will

Discussion in 'Estate Administration & Probate Court' started by JamesSJ, Feb 10, 2020.

  1. JamesSJ

    JamesSJ Law Topic Starter New Member

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    Jurisdiction:
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    Hello, my cousin passed away in a house fire last year. He was never married, had no children or siblings and his parents were deceased and so my Dad (his uncle) was his only heir.

    He had made a Will many years ago leaving everything to his Mom firstly and then my Dad as the next beneficiary.

    Everything sounds simple.

    However, the Will we have obtained from his papers in the garage is only a photocopy. It is signed and has two witness names but we obviously have no idea who they are and as any address books would have been in the house, it is impossible to locate them, if they are even alive.

    As I mentioned, the house was almost completely destroyed by fire so it’s likely the original copy of the Will went up in smoke.

    The question I am asking is, is it likely the court here in California will accept this Will even though it’s a copy? It should be a fairly straight forward probate otherwise with my Dad being his only family but we are concerned they might not accept this and insist on declaring he died ‘intestate’.

    If they did accept this Will, would they trust that my Dad is his only heir or insist on a lengthy process to search for any other legal heirs?

    Anyone with knowledge or experience in this matter would be greatly appreciated.

    Thanks.
     
  2. Zigner

    Zigner Well-Known Member

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    It sounds to me like intestate succession would produce the same result as what you say is in the will (of which you only have a photocopy). Why not just proceed under intestacy?
     
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  3. Zigner

    Zigner Well-Known Member

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    Wait, I get it - you're trying to avoid the "trouble" of looking for other possible heirs. Yes, it's possible that a court will accept a photocopy of the will in California. Your dad should speak with a probate attorney because I doubt he'll be successful without (at least) some guidance from one.
     
  4. army judge

    army judge Super Moderator

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    If the estate is worth LESS THAN $150K, Simplified Probate Procedures are allowed in California.

    The California Probate Code provides that probate estates of $150,000 or less do not need to be probated.

    If the estate consists of assets in excess of $150,000 a probate is necessary.

    The $150,000 amount is calculated by totaling all of the probate assets owned by the decedent.

    This CA attorney offers further information on "simplified probate":

    Avoiding Probate In California | Sweeney Probate Law | Riverside County, California

    Additional commentary on "simplified probate":

    Simplified Probate in California - A People's Choice

    Is Simplified Probate an Option for Small Estates? — Estate Planning Attorneys | Los Angeles, Pasadena, Rosemead, San Gabriel, Arcadia, Rowland | Wills, Trusts | Chinese 中文
     
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  5. JamesSJ

    JamesSJ Law Topic Starter New Member

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    Thanks for the replies.

    I believe the estate is over $150k based on what the banks indicated to us. Of course they couldn’t give us specifics.

    I’m regards to intestate, we just thought it’s more complicated as apparently the courts appoint their own Executor whereas we could use our own if we used the Will.

    We are pretty sure he has never had any children or has anyone on the other side of his family so just wondered if the court take ‘our word’ on that and accept my Dad as the sole heir or if they get complicated about it and insist we ‘prove’ it.

    My Dad is not particularly money orientated and doesn’t really want to get involved with Attorneys and courts at his advanced age but understands it’s the only way to claim the estate. I just want to make things as quick and simple for him as possible.
     
  6. Zigner

    Zigner Well-Known Member

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    Who is nominated as executor in the will?
     
  7. zddoodah

    zddoodah Well-Known Member

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    It's certainly possible to probate an estate with a copy of a will. Whether the particular copy that your father has will be accepted is impossible for anyone who hasn't viewed the document to opine intelligently about.

    I'm not sure who "they" are, but if your cousin's parents and grandparents are all dead and your father is the only living uncle or aunt, what difference does it make if the will is used or the intestate succession law is used? Your father will get everything either way.

    If the court accepts the will, the existence of other heirs is irrelevant.

    If the court doesn't accept the will, then the administrator of the estate and/or your father will have to prove that he is the sole heir. No reason why that would involve "a lengthy process."

    Huh? First of all, I don't entirely understand your use of the words "our" and "we." As you've described the situation, this has nothing to do with you. Subject to whom the will nominates to be executor, your father would be the most logical choice as either executor or administrator (they're basically the same thing). If he petitions to probate the estate and asks to be appointed, he would almost certainly be appointed unless he's not competent or someone else opposes his appointment. Likewise, if your father isn't up to the task, you could seek to be appointed and likely would be appointed unless either or both of those things happens. The court is not going to involve someone else just because it's an intestate estate.

    Regardless, retaining a probate attorney would be a very good idea (particularly if you choose to involve yourself).
     
  8. Zigner

    Zigner Well-Known Member

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    Yes - that's what I told the OP as well, but then I realized (and the OP actually stated) that he'd like to avoid the additional step of identifying other possible heirs. I don't know if the trouble of doing that is actually worth it. It will probably be just as much work to attempt to locate other heirs as it will be to convince the court to accept a photocopy of the will with no other witnesses around to testify about it.
     
  9. zddoodah

    zddoodah Well-Known Member

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    I don't know about that. No one has to "attempt to locate other heirs." Box 6d of the Petition for Probate gets checked (and none of the other boxes in section 6), and only the OP's father gets identified in section 8. Assuming the petitioner (presumably either the OP or the OP's father) publishes the proper notices, it's unlikely that the court is going to question anything too much.
     
  10. Zigner

    Zigner Well-Known Member

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    Fair enough - and a great reason for going the intestate route after all :)
    Particularly since there are no other heirs floating around who would object...
     
  11. JamesSJ

    JamesSJ Law Topic Starter New Member

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    Thanks for all the info.

    In the Will, my Dad is named as Executor but this was written years ago and with his advanced age, it’s not something he would wish to do. I am currently living overseas so wouldn’t be practical for me to do it either. We have a trusted family friend who we have used as an Executor before in a previous family Will who we’d probably nominate but I assumed that wouldn’t be possible with the Intestate route.

    A friend of my Dads told him that with we should ask the Court to validate the Will because with Intestate he’d have to prove he’s the sole heir and even hire private detectives or heir finder companies which sounds overly complicated and expensive when we know there is no other family.

    Maybe we should try with the Will first and if they reject it then we could go for Intestate.
     
  12. Zigner

    Zigner Well-Known Member

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    Maybe you should look at the form that was linked to by the California attorney...
     
  13. flyingron

    flyingron Active Member

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    The will only indicates a preference for the executor. Nobody has the power to act unless named by the court. If your father chooses not to serve, than the court will chose someone else. Yes you can certainly volunteer and likely will be approved.
     
  14. zddoodah

    zddoodah Well-Known Member

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    is this friend of your father's a California probate attorney? If not, I suggest your father not give any credence to what he's hearing from this friend.

    Given your explanation of the circumstances, there is no "we" here. This is entirely up to your father. If your father isn't up to being executor, that's up to him. However, if he hires an attorney to handle this (as he should, IMO), then the attorney can do any required heavy lifting, and your father will only have to sign a few things.

    FYI, an attorney will be paid a percentage of the estate. For a $150k estate, the statutory fee is $5,500. If your father nominates someone else to be executor, that person will be entitled to the same amount (and both amounts are subject to increase for "extraordinary services"). I suggest that your father consult with a local probate attorney about all this before deciding how to proceed.
     
  15. JamesSJ

    JamesSJ Law Topic Starter New Member

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    All useful info thanks.

    If we claimed the estate via intestate, I understand the Courts will want us to prove my Dad is the heir but how do we do that?

    When my cousins Mom passed many years ago, my Dad was named in her Will. Could we use that to prove the lineage? His name and address was on her Will and this is the Estate of her son so that surely proves he is the Uncle.
     
  16. zddoodah

    zddoodah Well-Known Member

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    Please (re-)read my prior responses in this thread -- in particular, post #9. Beyond that, this is something for your father (or whoever seeks to be appointed as executor/administrator) to discuss with a local probate attorney.

    I'm not sure what "that" refers to. It seems like you're contemplating some sort of very exhaustive process by which everything is going to have to be documented (e.g., birth certificates and/or DNA tests). That's not likely to be required unless someone contests your father's entitlement. In other words, you seem to be way overthinking things.
     
    Last edited: Feb 12, 2020
  17. army judge

    army judge Super Moderator

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    These days one can PROVE with scientific evidence to an ALMOST 100% certainty that Adam is related to Paul via genetic testing.

    Once a person has been tested, there are numerous online websites that one can use to see others who have joined the site to determine their ancestry.

    I suggest you research what one can do to prove WHAT genetic relationship exists between any number of people.
     

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