As a Los Angeles residence, you may wonder if the the concept of a last will and testament is an ancient one. A Testament means a set of last wishes, as does a will. While at its basic level, a last will is a final instruction as to what to do with a person’s assets when he dies, sometimes the matter gets a little more complicated than a plain California will. With a will comes the usual complications of people’s lives, such as estate litigation. Our estate lawyers face and settle cases involving the delicate dynamics of estate litigation and family emotions. In short, a last will or testament means last set of instructions re assets and last wishes of a deceased person, which is similar to family trust instructions.
Getting the Will Admitted in Probate Court
First, getting the will to be admitted in the Los Angeles Court comes with procedural issues. Once a will is admitted in probate court, the court presumes that it is valid if no contest has been filed. Who will file the will in probate court at times becomes more contentious than what the will actually says. This can happen when the person named as the executor of the will dies, and there is no backup person named in the document. In that case, there is a priority of persons who are entitled to be the administrator with the will annexed, but that has many limitations. So, let us say the decedent died, his executor dies, and there is a vacancy in the office of the executor or personal representative. If a child wants to become an administrator, while he might have priority, he may or may not be able to get bonded, which will effectively disqualify him from acting as an administrator. If a conservator was appointed for the decedent, that conservator has rights to become the administrator.
Who has the right to become a personal representative, administrator or executor in California?
According to the Ca Probate Code 8461, the person who is listed in the order of priority can become an administrator of an estate, where there is either no will or if there is a will but there is a vacancy in the office of the executor.
Probate Code 8461: Subject to the provisions of this article, a person in the following relation to the decedent is entitled to appointment as an administrator in the following order of priority:
(a) Surviving spouse or domestic partner as defined in Section 37.
(b) Children.
(c) Grandchildren.
(d) Other issue.
(e) Parents.
(f) Brothers and sisters.
(g) Issue of brothers and sisters.
(h) Grandparents.
(i) Issue of grandparents.
(j) Children of a predeceased spouse or domestic partner.
(k) Other issue of a predeceased spouse or domestic partner.
(l) Other next of kin.
(m) Parents of a predeceased spouse or domestic partner.
(n) Issue of parents of a predeceased spouse or domestic partner.
(o) Conservator or guardian of the estate acting in that capacity at the time of death who has filed a first account and is not acting as conservator or guardian for any other person.
(p) Public administrator.
(q) Creditors.
(r) Any other person.
In certain cases, it is more efficient to have a professional fiduciary act as the administrator of the estate or personal representative, because he or she can get bonded without a problem, and because the courts prefer a neutral over battling siblings or feuding family members. So, the appointment of a personal representative administrator is a common subject of disputes regarding last wills and testaments.
In other situations, the written disposition of the will may be a problem. The range of issues can include an ambiguity in the language, the non-existence of an asset specifically gifts, or even the sale of an asset which may have a debt, but which may have been specifically devised. Assuming the person who executed the will had the capacity to sign a will and was competent at the time of the signing, there are still possible contests involving undue influence.
Our Los Angeles law office assists individuals who want to prepare their last will and testament. Our lawyers also help administer a last will and testament for surviving family members who need help from an attorney. Consult our attorney about the impact of the will and review the assets that will be administered before you sign the will. This is especially important if you have a business which needs to be probated upon death. Creating a will is easy and takes very little time as does the related consultation.
By: Mina N. Sirkin, Wills and Trusts attorney in Los Angeles, who is California Board Certified as a specialist in Estate Planning, Probate and Trus Law. Consult our probate attorney about a last will and testament in the San Fernando Valley or Los Angeles at 818.340.4479 and email us here. We help clients in will and estate litigation in Santa Monica, Beverly Hills, Calabasas, Glendale and other cities in Los Angeles.
