A common misconception that some people might have is that a will is an alternative to probate.
They think that if you have a will, and you have set out how your debts are to be paid and how you want your assets distributed, then there is no need for probate.
This is not accurate.
You don’t avoid probate by having a will. The more accurate perspective is that a will can guide the probate process, but does not dispense with it altogether.
Two Different Functions
A will sets out the intentions of the decedent as to their properties.
They may select an executor, decide which properties should go to whom, leave instructions for their funeral, decide how their assets are to be divided and to what extent, and any other specific instructions or intentions that may be intended by the decedent with respect to their estate.
A probate, on the other hand, was traditionally intended as a forum to prove the will; hence, its root word “probare” or to prove. Nowadays, it is simply the legal proceedings intended to consolidate, administer, settle, distribute, and close the estate of someone who passed away – regardless of whether or not they left a will.
If they left a will, the will can help guide probate by giving the personal representative, the court, and the successors of the estate, a clear idea of the intentions of the decedent with respect to their properties.
If there is no will, the court and the heirs must follow the rules of intestate succession..
Delivering the Will to Court
As a preliminary matter, the will of a decedent must be located and filed in court. The person holding the will is referred to as the custodian, and they have a very specific obligation under Probate Code §8200 to deliver the will to court.
Under Probate Code §8200, the custodian of the will must deliver the will to the superior court clerk in the county where the decedent lived – and they must do so within 30 days of learning of the death of the decedent.
If they fail to do so, and a person suffers damages due to their inaction, the custodian is personally liable for those damages.
What the court does with your will
Now that the will has been delivered to court, it goes through a formal process known as “admitting a will to probate.”
During this process, the court:
- Verifies that the will is authentic
- Confirms that it was properly executed under the laws of California
- Verifies that it is the most recent valid will
This process can be straightforward. But depending on the family dynamic, can also literally open up a can of worms.
Will contests take place when a will is disputed or challenged. Some of the common grounds raised against the validity of a will include:
- That the will was not executed voluntarily
- That the will is not the most recent version
- That the will is not an accurate representation of the testator’s intentions
- That the will suffers from technical defects and does not meet California law requirements
- That the testator was not competent at the time of execution of a will
These kinds of challenges are best dealt with in a court setting, where the adversarial process will allow the court to come to a just decision. In either case, the court will choose either to uphold or invalidate a will.
If a will is invalidated, the probate process will proceed as though the decedent died intestate or without a will. If the will is admitted to probate, the will guides the probate process and the distribution of assets.
The real work begins after probate admission
So to the question: “If you have a will, does it go through probate?”
The short answer is yes.
A will needs to be delivered to court, proven, and then admitted to probate.
Once the will is admitted to probate, then the work of probate administration begins.
A personal representative is appointed and letters of authority are issued by the court. The personal representative, armed with the letters and the will, now begins the business of administering the estate:
- Gathering, consolidating and preserving the estate assets
- Investigating debts and liabilities and giving notice to creditors
- Establishing the value of estate assets
- Settling debts and liabilities of the estate
- Distributing assets to the successors
With respect to the wishes of the decedent as set out in their will, the personal representative is of course obligated to carry out the terms of the will. This includes distributing the estate assets according to the wishes of the decedent.
But while the testator’s intent is paramount, the duty of the personal representative to fulfill the decedent’s wishes is not absolute. For instance, if the estate has more liabilities than assets, distributing the assets to successors may not be realistic if the estate is insolvent.
If the decedent left instructions to sell certain properties, the court may relieve the personal representative from the obligation to follow the will provisions if it is shown that doing so would be to the benefit of the estate.
So a will and probate are not mutually exclusive. The will serves as a roadmap for how the decedent wanted their estate to be settled, but it operates entirely within the framework of probate.
But even with a clear will, the court retains its authority to oversee the administration, ensuring assets are properly managed, debts are paid, and beneficiaries receive what they are entitled to according to the law.