One of the most common misconceptions is that if you have a will, you can avoid probate.
After all, if you went through all the trouble of leaving instructions on what should be done with your properties after your death – such as who gets what, what can be sold, what should be kept, how certain costs are to be defrayed, your favorite charities, or who will care for your pets – the thought of a full probate proceeding on top of it seems wholly unnecessary.
But here’s the gist of this misconception: a will is not a self-executing document.
By itself, a will does not transfer property, appoint executors, grant guardianship of minors, or pay debts. Administration through probate are what gets these tasks accomplished for the estate.
And traditionally, a probate proceeding was, rather pointedly, intended to validate wills.
So the quick answer to the question of whether having a will allows you to avoid probate altogether – is a resounding no.
Probate is proving the will in court
The term probate comes from the Latin probare, meaning “to prove.” So in a very real sense, one of the original purposes of a probate proceeding was the authenticate and verify a will – that the will before the court is the most recent and that it represents the decedent’s final testamentary intent.
A court will not simply accept that a will is what it is claimed to be.
These days, of course, whether a decedent died with a will or without a will, the estate still goes through probate. The difference is that a will, after it has gone through the process of being validated in court, provides a guide to the personal representative on how the estate is to be administered and, towards the end, distributed.
The 30-Day Filing Rule
If the decedent died testate, or with a will, the custodian of the will is legally obligated to deliver the original copy of the will to the Superior Court within 30 days of learning of the testator’s death. This is set out in California Probate Code §8200. The custodian of the will who fails to do so will be liable for all the damages sustained by the person or persons who suffered injuries because of his or her failure to do so.
Note that the 30-days deadline is reckoned from the time that the custodian learns of the death of the testator. It is not dependent on whether or not probate proceedings have been started.
Wills do not grant immediate authority to the executor
In a will, the testator generally names their executor or executrix – usually a person they trust to take care of things when they are gone. What must be remembered is that wills are not self-executory, and they do not immediately grant authority to the named representative.
That means that a named representative of executor cannot simply present the will to third parties as proof of authority to transfer property. Even if the will is later authenticated, the authority of a personal representative to manage the estate assets comes from the letters of authority issued by the court, not the will.
In short, despite the presence of a will, unless the will is authenticated through probate and letters of authority are issued to the named or appointed personal representative, no action can be taken on the estate. Real estate, financial accounts, and other property cannot be transferred, sold, or distributed, and debts and creditor claims cannot be settled, until the representative does so under the court-issued letters of authority.
The risks of acting without court authority
Most people seek to avoid probate proceedings due to the delays in distribution and the cost of the proceedings itself. But court-supervised probate does offer certain advantages, including:
- Providing an appropriate forum to resolve disputes or creditor claims
- Resolve any clouds in title or uncertainty in property ownership
- Late creditor claims are barred if filed after statutory deadlines
- The personal representative is protected from personal liability when acting within the scope of their authority
That said, some people who may have been named as representative or executor/executrix in the will may try to act immediately even without court approval, or even before a will is probated.
But by doing so, the person can expose themselves to risk and run the danger of dissipating the estate assets. The risk for the person acting only on the strength of authority granted in a will includes personal liability, for instance, for improperly distributing, transferring or selling estate assets.
In addition, they may be held personally responsible for any losses to the estate or for any damages suffered by the heirs or successors, as a result of their actions. This liability may include having to restore or reimburse funds, restore property, or answer for damages.
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If you are the custodian of a loved one’s will and need clarity on your legal obligations, or if you are planning your own estate and want to understand how a will interacts with probate, we can help you evaluate your options. Contact us today to schedule a consultation.