Anyone in possession of the decedent’s assets cannot distribute them before probate is initiated. Furthermore, the personal representative generally cannot distribute assets until an order for final distribution has been granted at the end of a probate administration. There are circumstances in which assets may be distributed early. This is generally due to the needs of the decedent’s spouse and dependents. These family allowances are governed by the probate code and a personal representative should seek the advice of a probate attorney before making any distributions. For any other early distributions, the personal representative must file a petition for preliminary distribution and provide a strong reason for distributing assets before the estate is in a position to be closed.
When Can Money Be Distributed After Probate?
As soon as the court signs and files an order for final distribution, the personal representative may follow the directions in the order. These directions generally consist of how much money and/or other assets could be distributed to each beneficiary or heir.
What If The Executor Is Also A Beneficiary? Does It Complicate The Estate Administration?
It is common for an executor also to be a beneficiary of the estate. An executor who is also a beneficiary has the same duties and liabilities as a non-beneficiary executor. Therefore, in this sense, nothing changes. However, if there are any personal issues between the executor and the beneficiaries, the executors appointment can complicate the administration. When there is tension or distrust between the parties, then it is more likely the beneficiaries will question or challenge the actions taken by the executor even if the executor is acting appropriately.
What Could Cause A Will To Be Considered Invalid In California?
If a person interested in a decedent’s estate believes the will presented to the probate court is invalid, they may file a will contest on the following grounds:
- Lack of Execution – meaning it was not properly signed or witnessed.
- Lack of Testamentary Intent – meaning the decedent didn’t understand the purpose of the will was to transfer assets on their death.
- Lack of capacity to make a will – meaning the decedent was not of sound mind and/or was not at least 18 years of age
- Undue Influence, fraud, menace or duress – meaning the decedent did not did not sign the will freely or was tricked by another person into signing the will
- Mistake – meaning the decedent did not understand that the document they signed is a will.
- Revocation – meaning the decedent revoked the will by executing a more recent will or destroyed their will by tearing it up or throwing it away.
- Forgery – meaning a person forged the decedent’s signature.
If a will contest is filed, then a trial is held before the probate court judge, and the party challenging the will must present sufficient evidence to prove the will is invalid. If you believe a will is potentially invalid you should seek legal advice quickly to determine if you have sufficient cause to challenge the will’s validity and determine if a successful challenge outweighs the cost of trial.
What Happens If A Will Is Not Written Clearly And Contains Verbiage That Is Open To Interpretation?
If a will is poorly drafted or contains conflicting provisions, the personal representative may ask the court to issue an opinion interpreting the will. The court will review petitions from both sides in an argument. California law allows a court to consider extrinsic evidence such as letters and notes from the decedent or testimonies from persons familiar with the decedent’s intent.
What Happens If One Of The Beneficiaries Listed In The Will Is Deceased?
If a beneficiary listed in a will is deceased, the first question is when did they die in relation to the decedent’s date of death. If they died before the decedent died, then they are considered to have predeceased the decedent, and the assets transfer according to the instructions left in the will. The will often names a contingent or remainder beneficiary. If, however, the beneficiary died after the decedent, but before the estate is probated, then how long they survived the decedent is important. Wills often contain survivorship clauses that state how many days a person must survive the decedent to remain a beneficiary of the estate. Thirty days is frequently used in survivorship clauses, but it could be more or less.
Suppose a beneficiary does not survive the decedent by the specified number of days. In that case, it is as if they predeceased the decedent, and the assets transfer according to instructions left in the will. If the beneficiary does survive the decedent by the specified number of days, but dies before the end of the administration, then the asset is transferred to the beneficiary’s estate. If no further instructions are given in a will, the assets will generally transfer to the decedent’s heirs as identified under California’s intestate laws.
When Will I Know How Much I Will Receive As A Beneficiary?
A personal representative will generally have a good idea of the total assets and creditors in the estate at the beginning of the administration, and may give the beneficiaries an estimate of how much they’ll receive. However, it is important to keep in mind that the personal representative may learn of more creditors as the administration proceeds. If the creditors file proper and timely claims they have priority over any beneficiary and may cause the beneficiary to receive less.
I Attempted To Administer An Estate And Made Mistakes. Can Your Firm Help Me At This Time?
While it is generally best to work with an experienced probate attorney from the very beginning, we can assist if you’ve already started the probate process, and either feel it is too complicated to continue or mistakes have been made. We’ve stepped into open probates in the past and have carried them to completion. We are happy to help if you are in need.
For more information on Making Distributions Prior To Probate, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 529-4541 today.
