What Happens In California If You Cannot Find The Original Will?
Generally, in order to admit a Will to probate, the original Will must be produced. However, sometimes, the decedent’s original Will cannot be located. If a decedent’s original Will cannot be found, does it mean that the probate process cannot commence? Well, the laws regarding what happens when an original Will cannot be located and whether a copy of a Will can be admitted to probate vary from state to state. Below is a look at what California law says about these issues.
What Happens in California if a Decedent’s Original Will Cannot Be Located?
If an original Will cannot be located, it is possible to admit a duplicate original of the Will to probate. Generally, a duplicate Will is considered legitimate if the original Will is non-existent. However, litigation may follow if a party disputes the admission of a duplicate original of the Will.
Generally, if the original copy of a decedent’s Will cannot be located, California law presumes it was revoked by the decedent. However, if you can prove that the decedent had no plans to cancel their Will, you may be able to admit the duplicate original of the Will to probate. Usually, proving this is simple if the decedent did not possess the original Will before its alleged destruction. In such a case, the party challenging the admission of the duplicate original of the Will would have to bear the burden of proving, using clear and convincing evidence, that the decedent did, in fact, destroy the original Will. On the other hand, if it is determined that the decedent had access to their original Will before their death and the Will cannot be located, you may have a hard time proving that it was not destroyed and revoked.
What Happens if No Will Can be Found?
If you cannot find the original Will or the duplicate original of the Will, it will likely be concluded that the decedent destroyed the Will and revoked it or that they did not make a Will. In such a case, California will treat the decedent’s estate as though the testator died intestate, that is, without a Will. In other words, if the original Will and duplicate original of the Will cannot be located, the court will most likely distribute the decedent’s property according to California’s intestate succession laws.
If the court decides to treat the decedent’s estate as though the decedent died intestate and the decedent left children but no spouse, the children will inherit all the decedent’s property. If there are no surviving children, parents, siblings, nephews, or nieces, but there is a surviving spouse, the spouse inherits everything. Lastly, if there is a surviving spouse and a surviving child or grandchild, the spouse will inherit all the decedent’s community property and half of the separate property. The other half of the decedent’s separate property will go to the surviving child or grandchild.
Contact The Probate Guy for Legal Help
If you’ve lost a loved one and cannot find their original Will, you need to reach out to an attorney for help. If you cannot find your deceased loved one’s original Will, contact the dedicated California probate attorney, Robert L. Cohen – The Probate Guy- to schedule a telephonic consultation.
Source:
leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PROB&division=6.&title=&part=2.&chapter=1.&article
