How do I probate a lost will in California?

How Our Dedicated California Probate Lawyers Can Help You Overcome the Challenge of a Missing Will

Every estate plan is different in its details, but most serve a similar purpose: ensuring that a legacy remains safe from the perils of probate. For many California families, a simple will is often enough to provide a sense of security. However, any protection afforded by a testament can disappear the instant that an original copy goes missing, leaving estates exposed to the threat of unexpected contests and complications.

The Law Firm of Kavesh, Minor & Otis, Inc. has spent decades helping Los Angeles and Orange County families shield themselves against uncertainty. If you need help navigating the fallout of a missing original will, our experienced team of probate attorneys could help you explore your best options for a fair and efficient resolution.

California Probate: the Consequences of a Missing Will

In California, probate claims are opened and closed through clear-cut rules of succession.

If the deceased person wrote a will and an original copy is available, it must be submitted to the court shortly after probate is initiated. Probate courts typically try to honor the deceased person’s wishes and often go to great lengths to ensure that the testator’s original intent is honored and executed. However, even simple cases could become complicated if the decedent’s will goes missing and cannot be found.

The California Probate Code, for instance, requires that courts exercise an abundance of skepticism: if there is no original will and no valid duplicate, the testator is presumed to have deliberately destroyed their will. And, if there is no earlier version available, this presumption could easily thrust the estate into intestacy.

The Risks of an Intestate Succession in California

Anyone who dies without a will or any other estate plan is said to have died intestate.

Since intestate succession presumes that the deceased person made no arrangements for leaving a legacy, their assets are distributed in accordance with a very strict legal formula. In a typical intestate succession:

If a decedent was single but survived by children, their children will inherit proportionate shares of the estate.

If the decedent had a spouse and one child, their spouse inherits 50% of the deceased person’s community property and 50% of their separate property.

If the decedent had a spouse and two or more children, their spouse inherits all of the deceased person’s community property and one-third of their separate property, with the remaining two-thirds bequeathed to the children.

California’s intestacy rules give special privilege to spouses and children, but these rules can have far-reaching consequences. Even if a will only listed a spouse and children as beneficiaries, the estate assets may not be split in the way the decedent had intended. And, if they did not have a spouse or children, their estate could be given over to estranged parents or divided among distant relatives with whom the decedent had no meaningful relationship. In very rare cases, the estate could even escheat to the state.

Your Options for Avoiding Intestacy

Although the California Probate Code instructs courts to make significant presumptions about missing wills, these presumptions can be challenged and overcome. The Law Firm of Kavesh, Minor & Otis, Inc. could help your family keep a loved one’s legacy safe from intestate succession by:

Locating the Missing Will

Most people recognize that a last will and testament is a critical component of their estate plan.

However, wills go missing with alarming regularity—often because the writer misplaced the original or simply forgot to tell their executor where to find a copy before passing away.

Our probate attorneys could help you or your estate executor find a missing will by:

Speaking to the decedent’s friends, family members, employer, and former attorney
Reviewing the deceased person’s records and other estate assets for evidence of storage units or safe deposit boxes
Filling out the paperwork to provide an executor, or their probate attorney, with access to the decedent’s financial institution

Submitting a Valid Copy to the Probate Court

If the original will was lost but the executor has a copy, they must inform the court and file a petition explaining the circumstances. The court will then file a hearing, during which the burden of proof is placed on the petitioner—an executor or heir—to establish that the original will was not intentionally destroyed and the duplicate is an accurate representation of the decedent’s wishes.

Depending on the circumstances of your claim, we could help you:

Locate the attorney who drafted or executed the original will, even if it was written years ago
Locate and interview eyewitnesses who may be able to testify to the decedent’s intent
Analyze a holographic (handwritten) will to verify that it was drafted by the testator and was meant to serve as their estate plan

Protect Your Estate From Unexpected Challenges

Keeping an estate out of intestacy may seem to be in everyone’s best interests, but sometimes other heirs and beneficiaries may challenge the validity of a duplicate will, often because they believe they stand to gain more from an intestate succession than standard probate administration.

The Law Firm of Kavesh, Minor & Otis, Inc. could help an estate executor fulfill their duty to defend an estate from unreasonable challenges by investigating claims and constructing a compelling, evidence-based defense—ensuring that legacies are respected and a loved one’s last wishes are accorded the respect they deserve.

Do You Need To Speak With An Experienced Probate Lawyer?

If you need to speak with an experienced probate attorney please contact us online or call us directly at 800.756.5596 to provide the full details of your case and discuss scheduling a free appointment. Please note that we cannot assist with the probate if it has been filed or opened with the court. Our probate law firm proudly serve clients throughout California from our main office in Torrance, as well as those in Redondo Beach, Manhattan Beach, Hermosa Beach, Segundo, San Pedro, and Rancho Palos Verdes.

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