The death of a loved one can lead to stressful and costly litigation for their descendants when there are issues with the enforceability of their will. When you have questions about validating or contesting a will in court, an experienced probate attorney could advise you about the documents needed for probate in Orange County.
An attorney could walk you through the probate process, including state and county laws for wills and estates.
A Probate Proceeding Could Happen Even When a Will Exists
Probate is the legal process by which a court transfers the assets of a deceased person to their heirs and beneficiaries and settles their outstanding debts and financial affairs. The probate court must verify the decedent made a legally enforceable will.
Probate is not always necessary to transfer a decedent’s property. Whether the estate has to go through probate depends on factors such as the value and type of assets owned. The state has simplified procedures to govern asset transfer when the decedent’s property is considered a small estate.
The small estate threshold is $184,500 or less if the decedent passed on or after April 1, 2022. When the decedent passes before that date, the maximum value for small estate consideration is $166,250.
The administrator must prepare an inventory of all real and personal property owned by the decedent, which is one of the documents required for probate in Orange County. Real property should include real estate such as land, homes, and commercial buildings. Personal property includes the decedent’s tangible assets, such as money, vehicles, fine art collections, household furniture, clothes, and jewelry.
Under state law, not all property is subject to probate court. For example, life insurance, retirement funds, and other financial accounts with a named beneficiary will transfer without probate. Additionally, a living trust set up to disperse cash or assets to a named beneficiary is excluded from consideration as probate property under California Probate Code § 15200.
Disputes can arise in probate court when a beneficiary or interested person challenges the will. When someone dies intestate without a will, the probate court will distribute the deceased’s property according to the state’s intestate succession laws.
A Petition of Probate Initiates the Proceeding
When facing the prospect of probate court, an estate planning attorney in Orange County can help prepare the necessary documents.
For example, the proceeding is typically initiated by filing a petition of probate. The petitioner, usually the executor of the estate, provides written notice to all named beneficiaries to inform them of when and where the probate proceeding will take place. The petitioner must follow specific rules in providing notice, such as publishing notice in the newspaper where the decedent resided, according to CA Prob. Code § 8121.
An estate planning attorney could advise about applicable filing fees for petitions of probate. When the will is contested, the court will hold a hearing to decide the validity of the document. State law provides that any interested person can challenge a will. CA Prob. Code § 48 defines an interested person as any individual with a right or claim to the estate’s property.
A lawyer could also provide guidance and help obtain necessary evidence for a probate hearing. CA Prob Code § 48 permits using extrinsic evidence to help determine whether a will is enforceable. Examples of potential evidence required for probate are inventories of assets, real estate records, financial records, duplicate copies of the will, death certificates, and witness testimony or affidavits.
Extrinsic documents are likely required in challenges to a will written by hand, known as a holographic will. Holographic wills are legal and do not require any witnesses, provided they are in the decedent’s handwriting, according to CA Prob. Code § 6111. Holographic will disputes could require outside evidence to verify the testator’s handwriting.
Contact an Orange County Lawyer for Documents Needed for Probate
An attorney can walk you through the filing process for documents needed for probate in Orange County.
The lawyer could also help prepare or obtain necessary evidence and give advice on county-specific filing fees. Contact us today to schedule a consultation.
