There Is a Will. Why Might We Still Need Probate?

Finding the will does not end the matter. A will says who should receive the property it reaches, and names the person the family will ask the court to appoint. Whether it reaches an asset depends on how the asset was held, not on what the will says. Naming is not appointing: the person the will names as executor has no power to administer the estate until the court appoints them and Letters issue.

An estate is the property a person owned when they died. Formal probate is a court process for appointing a representative and administering estate property. The California Courts guide to property after someone dies says an estate may need probate even with a will.

What the will decides

A will decides who receives what was the person's own to give. Probate Code section 6101 fixes that outer edge: separate property, and the person's own one-half of the community and quasi-community property. A surviving spouse's or registered domestic partner's half is not the will's to give.

Under Probate Code section 7000, title passes at the death to the person the will leaves the property to, or to the heirs where the will does not reach it. That title is subject to Probate Code section 7001: to administration under that code, except as otherwise provided by law, and to the rights of beneficiaries, creditors, and other persons. Identifying who receives what is not the same as being free to deal with the property.

What a will does not effectively dispose of passes to the heirs under Probate Code section 6400; Someone Died Without a Will in California: What Happens Next? explains those rules.

What a will reaches, and what it cannot

The companion Will, trust, and beneficiary arrangement comparison sets out the three; Do We Need Probate in California? sorts assets one at a time.

A will controls the property it reaches, is carried out by a person the court appoints, and confers no authority.

A trust controls the property actually held in it, is carried out by the trustee under the trust's terms, and by itself reaches nothing else.

A beneficiary arrangement controls the asset it is attached to and is carried out by the company or bank on its own records. Probate Code section 5000 keeps such an arrangement from failing merely because the document was not signed the way a will must be: an insurance policy, a retirement plan, an account agreement, or a similar instrument.

For accounts, Probate Code section 5302 is categorical: a right of survivorship in the account, a beneficiary designation in a Totten trust account, and a payable-on-death payee designation cannot be changed by will. For a life insurance policy or a retirement account, the policy or plan terms and the designation on file with the company control, and the will does not rewrite them.

What the court does with the will

Under Probate Code section 8000, any interested person may petition at any time after the death to have the will admitted, a personal representative appointed, or both. A personal representative is the person the court appoints to administer the estate.

After notice to each heir, even one the will leaves nothing, and after newspaper publication, the court accepts the document as the will at a hearing and says so in its order under Probate Code section 8006. Admitting the will to probate is not a decision about which assets the will reaches or who ends up with what.

Probate Code sections 6110 and 6111 state a will's ordinary requirements: writing, a signature, and two witnesses present at the same time, or, without witnesses, the signature and material provisions in the handwriting of the person who made it. Whether a document meets either is a question for a lawyer.

From nomination to Letters

Under Probate Code section 8420, the person the will names as executor has a right to appointment, not an appointment. Under Probate Code section 8400, a person has no power to administer the estate until the court appoints them and the appointment takes effect, which happens when the court issues Letters, the court's document showing the appointment. The appointment order must say, in capital letters on its first page, that the appointment is not effective until Letters have issued.

Where no executor is named, or everyone named waives the right or is unwilling or unable to act, the court appoints an administrator with the will annexed. The will still governs who receives the property; only the identity of the person carrying it out changes.

What the person the will names may do meanwhile

Section 8400(b) permits two acts and no more before the appointment is made or becomes effective: the person the will names as executor may pay funeral expenses and take necessary measures for the maintenance and preservation of the estate. The statute does not mark the second's outer edge, so ask a lawyer rather than guess.

Selling anything, giving anyone their share, and instructing a bank or a brokerage are not among the two; Named Executor? What You Can Do Before and After Court Appointment takes that up.

The original will, and who must deliver it

The duty falls on whoever is holding the original will, the statute's custodian. Under Probate Code section 8200, unless a petition for probate of the will is filed earlier, that person owes two deliveries within 30 days of learning of the death: the will itself goes to the clerk of the superior court for the county in which the estate may be administered, and a copy goes to the person the will names as executor, or, if the holder cannot find them, to a beneficiary the will names who can be found.

That county is normally where the person lived, not where they died, under Probate Code section 7051. The original must be delivered in person, or sent by certified or registered mail. The copy goes by a method Probate Code section 1215 allows, such as personal delivery or first-class mail; ordinary email is not allowed. A holder who does not comply is liable for all damages sustained by anyone injured by the failure.

What the will settles, and what it does not: a hypothetical

For a hypothetical example, suppose that Daniel died in California owning a brokerage account in his name alone, with no transfer-on-death registration and no beneficiary named, and a life insurance policy naming his wife, who died before him, with no contingent beneficiary. His will divides everything equally between his two children, who both survived him, and names his daughter Priya executor. Assume no remarriage, no trust, no later document, and a policy providing that the proceeds are payable to the estate where no named or contingent beneficiary survives.

Nothing is attached to the brokerage account, so the will reaches it and leaves it to the children equally, subject to administration and to creditors' rights. On the stated assumption the proceeds may become payable to the estate and would then follow the will; the policy and the company's records answer what happens when the only named beneficiary died first.

Naming Priya gives her the right to ask the court to appoint her; until the court appoints her and Letters issue, she cannot instruct the brokerage firm or otherwise administer the estate.

Change one fact. The brokerage account carried a transfer-on-death registration naming both children, a written provision section 5000 recognizes, so it passes under the registration, if that registration was effective, and the will governs only what is left. Priya's position is unchanged.

What to gather before the first conversation

Three questions decide what happens next: what the will says, how each asset was held, and who may act. Gather:

• The original will, intact, and every later document: codicils, a later will, and any handwritten page that might be one, kept as found. Do not tidy, mark, or decide which version counts.
• Certified copies of the death certificate: the clerk uses one, with the required payment, to release a copy of a will already delivered.
• The ownership record for each asset: the account agreement, the deed, the designation on file with the company, and the trust document with anything that moved property into it.

Gathering these needs no authority; acting on the estate does. Someone Died in California: What to Do First covers the first days; the California Probate Guide for Families covers the whole case.

Watson Law Group, APC advises California families on estate administration. To discuss what the will reaches and what this estate needs, bring the original will, the ownership papers, and a certified death certificate.

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General California legal information, not advice about a particular estate.