How Long Is A Will Valid After Death?

Probate is a legal process by which a person’s assets are distributed after death. Probate in California takes place in the Superior Court of the county where the person died. Many, but not all, estates are subject to probate. A personal representative, also called the executor, must petition the court for probate within 30 days after learning of the decedent’s death. If you need help with your Will or Trust call our Probate Attorney today.

When you write a Will, assuming you are at least 18 years old, of sound mind, and covered all the other legal requirements to create a valid Will, it is considered “executed” at the time you sign it. This means that it is “good” indefinitely unless you change it or revoke it. To be legally effective, a Will must be probated within five years of the date of the testator’s death. While you don’t legally have to probate a Will in Alabama, it is often advisable if there are numerous beneficiaries and/or claims upon the estate. And you should probate a Will if you want it to have legal authority.

At the moment a person dies, the most recent version of their Will becomes the official document the courts look to for guidance as to what the testator (i.e., the deceased) wanted done with their belongings. How Long Will ExecutedFor a Will to be valid in Alabama, it should be in writing, signed by the person making it (i.e. the testator) or someone in the testator’s presence and under his or her direction, and attested to by at least two witnesses who sign their names in the presence of the testator. The testator must be mentally competent and at least 18 years old. Some states allow handwritten wills (called “holographic wills”) to be admitted as valid. Alabama does not recognize such handwritten wills.

After the testator dies, the personal representative should go to the Probate Court in the county where the testator lived at the time of their death with the Will. They should request a letter of administration (also called letters testamentary). Then the personal representative should begin collecting all the testator’s assets. Often times a testator will prepare an asset inventory to include with their Will. This is especially useful if the personal representative did not have intimate knowledge of the testator’s assets.

If someone dies without a valid will, they are considered to have died “intestate.” Every state has its own rules about who gets what under intestate laws, but they are generally similar. In dealing with estates, you will come across the word “issue.” In this context, issue means all of the people who have descended from the deceased. This includes children (natural and adopted), grandchildren (natural and adopted), great-grandchildren, and so on.

What Happens If You Don’t Apply for Probate in California?

Who Must Petition the Court for Probate

The executor named in the will has the sole responsibility of filing a petition for probate. The decedent — the legal term for the person who died — names an executor to administer the estate in his will. If an executor is not named in the will, someone who desires to be the executor should petition the court for probate.

Steps to Take If the Case Belongs in Probate Court

1. The custodian of the will (the person who has the will at the time of the person’s death) must, within 30 days of the person’s death:

Take the original will to the probate court clerk’s office within 30 days. Contact your superior court courthouse to find out where the probate court clerk’s office is located.
Send a copy of the will to the executor (if the executor cannot be found, then the will can be sent to a person named in the will as a beneficiary).
If the custodian does not do these things, he or she can be sued for damages caused.

NOTE: If there is no will and a court case is needed, the court will appoint an administrator to manage the estate during the probate process. The person who wants to be the administrator must file a Petition for Letters of Administration (form DE-111PDF file type icon). The administrator usually is the spouse, domestic partner, or close relative of the dead person.

2. Someone, called “the petitioner,” must start a case in court by filing a Petition for Probate (form DE-111PDF file type icon). The case must be filed in the county where the person who died lived (or if the person lived outside of California, in the California county where that person owned property).

The Petition for Probate has different options, like:

Petition for Probate of Will and for Letters Testamentary
Petition for Probate of Will and for Letters of Administration with Will Annexed
Petition for Letters of Administration
Note: To start a probate case you will need more forms than just the Petition for Probate form. Talk to a lawyer for help with your case.

When to Petition the Court for Probate

According to California Probate Code § 8001, if an executor named in a will does not petition the Superior Court for administration of the decedent’s estate within 30 days after the executor has knowledge of the decedent’s death, the named executor may have waived his right to be the personal representative, unless there is good cause for delay.

Consequences of Not Filing Within 30 Days

The court may appoint an alternative representative if the named executor does not petition the court within 30 days of being notified of the decedent’s death. The court will determine whether the named executor waives his right to be the personal representative by not filing within 30 days. The named executor does not automatically lose his role as executor; rather it is within the court’s discretion whether or not to appoint a named executor on a case-by-case basis. If the named executor is not appointed as the personal representative, the court will designate another person to administer the estate. Preference is given to those who inherit from the estate. The surviving spouse is giving first preference, if the surviving spouse desires to administer the estate.

When your loved one created their will, they should have designated an administrator of their estate to be responsible for making sure their final wishes are carried out, including paying off any outstanding debts and distributing assets and property to their named beneficiaries. If you are in possession of their will when they die, you are legally obligated to file the will with the superior court in the county in which they lived within 30 days after their death. This involves bringing the will to the probate court clerk’s office, which will then file the will with the court and mail a copy of the will to the person named as administrator, or executor, of the estate.

You Cannot Transfer Property and Assets

Although failure to file a will within this time period is not considered a crime, it can result in serious consequences for you and for the estate. Probating a will is the only way to legally validate it and transfer the legal title of property to the named beneficiaries. Without opening probate, any assets titled in the decedent’s name, including real estate and vehicles, will remain in the decedent’s name for an indefinite period of time. This prevents you from selling them to pay off debts, distributing them to the beneficiaries, or keeping registration current. The estate will most likely continue to accrue ongoing expenses, such as property taxes and insurance premiums, and you may be held personally liable for these expenses and the financial impact to beneficiaries. You can become subject to a claim by the decedent’s beneficiaries or anyone else who suffers financial hardship due to your failure to file.

You Cannot Close the Estate’s Debts

Along with managing assets for beneficiaries, another important responsibility you have as administrator is to notify all potential creditors with claims against the estate that the person has died. If your loved one had unpaid financial obligations that must be taken care of after they pass away, initiating the probate process gives creditors four months after you were appointed to your position as administrator to file their claims. After they file a claim, you are responsible for either paying this debt or contesting it within 30 days. Once a claim is rejected, creditors have 90 days to file a civil claim in response or they lose the right to do so. Failure to open probate benefits creditors by allowing them to continue pursuing payment of the debts for up to one year.

You May Be Removed from Your Role

As the administrator of an estate, you have a fiduciary duty to put the interests of the estate and its beneficiaries first when making any decisions about preserving, distributing, or otherwise managing the estate. You are expected to act with honesty, fairness, and integrity, and carry out the decedent’s wishes in good faith. If the beneficiaries suspect that you have violated your fiduciary duty, such as hiding or mismanaging assets, failing to distribute them in a timely manner,stealing funds, or making poor investments, they can alert the court of this potential misconduct and petition a judge to take action against you. The judge may ask for a financial accounting of your actions, compel you to fulfill your duties, or even remove you from your position entirely and appoint someone else.

You May Be Criminally Prosecuted

Finally, if you failed to file the will and open probate because you are intentionally concealing the existence of the will for your own benefit, you can become criminally liable for the damages they suffer as a result of your violation. For example, if your mother creates a will that stipulates all of her property should be distributed to a local charity, but the court is unaware that her will exists, the laws of intestate succession (dying without a will) would position you to inherit the estate. In this case, your decision to not file the will is a direct result of your desire to achieve financial benefits from the estate against her wishes. This is considered a criminal violation and you are therefore subject to criminal prosecution.

How to Petition the Court for Probate

The executor must submit a Petition for Probate, Form DE-111, to the Superior Court. This form asks the court to officially appoint the executor named in the will as executor of the estate. The person named in the will cannot assume his role as executor until appointed by the court. The executor must then fill out and submit the Notice of Petition to Administer Estate, Form DE-131. After the personal representative has been officially appointed by the court, the representative needs to fill out the Duties and Liabilities of Personal Representatives, Form DE-147.

The way to avoid probate is to get a full estate plan in place with a Revocable Living Trust being the centerpiece of that estate plan. For more information on how to accomplish that, please call.

Protect Your Loved One’s Estate (and Yourself)

If you have recently lost a loved one and are in possession of their will, it is absolutely imperative that you file the will within the statute of limitations to initiate the probate process. When you are named in the will as the administrator of the estate, you may be confused about your responsibilities or feel overwhelmed, but simply ignoring the will is not an option. Failure to file prevents beneficiaries from accessing their inheritance, allows creditors to continue pursuing claims against the estate, and can result in you being removed from your position or even criminally prosecuted if the court finds that you did so out of your own financial interest.