An important part of end-of-life preparation or just future planning is creating a will. A will is a document that dictates what your final intentions are regarding your assets and property. (Estate of Lopes (1984) 152 Cal.App.3d 302, 305.) Because of how a will determines inheritance and any future interest people may have in your property, after passing through the probate process, wills become public record.
What is a will?
A will is an estate planning tool. It is formally called a last will and testament, because it is the testator’s (or your) final intentions of what will happen to your assets following death. All of the assets owned by a decedent at their death constitute their estate. The will lists out what will happen to that estate. Specifically, a will names specific people or groups of people who will or will not receive specific assets. (In re Kuttler's Estate (1958) 160 Cal.App.2d 332, 335-336.) In order to be operative and thus enforceable, a will must appoint an executor. (McMahon v. State Bar (1952) 39 Cal.2d 367, 370-371.) This person ensures the will goes through the probate process.
Certain property is exempt from a will and can be passed through non-probate asset transfers. These include trust distribution, assets owned in joint tenancy because those have a right of survivorship, community property with right of survivorship because that remains with the surviving spouse. (Placencia v. Strazicich (2019) 42 Cal.App.5th 730, 736-737.)
Why is it important to have a will?
A will ensures your surviving family members or other people in your life know what to do with the assets comprising your estate. The court will adhere to what you have spelled out in the will if your intent, or testamentary intent, was clear. (Estate of Wong (1995) 40 Cal.App.4th 1198, 1205.) This means you competently and truly meant for this document to determine who would get what assets. (Estate of Williams (2007) 155 Cal.App.4th 197, 212.) A will spells out how the assets will be distributed which helps avoid any confusion or disagreements with how things are divided. It also ensures your wishes will be followed. (Eyford v. Nord (2021) 62 Cal.App.5th 112, 121.) A will sets out how assets are to be distributed but also may direct property to be sold. (Cal. Prob. Code § 10000.) That is why filing a will with the probate court is important.
How do wills become public record?
In order to distribute assets, the will must go through probate. (Reed v. Hayward (1943) 23 Cal.2d 336, 339.) This requirement ensures a will is made public record. Once the will is lodged with the court to open probate, the will is public record and can be accessed by anyone even if they are not included in the estate or related to the decedent.
The executor of the estate has a duty to file the will with the probate court. The executor is designated by decedent and will file with the court asserting they are the executor. (Cal. Prob. Code. § 8422.) Once the executor has filed the will, the estate passes through a formal probate process. (Estate of Helm (1935) 6 Cal.App.2d 752, 755.) This proves the authenticity of the will and appoints an executor if one has not been designated already.
When the executor files a will they also file a petition to open probate with the court which sets a date for the initial probate hearing. (Prob. Code. § 1041.) If there is no will, the executor can petition for letters of administration which triggers intestate succession, and the court will appoint an administrator for the estate.
The executor must file with the county superior court where the decedent lived for 30 days prior to their death. (Prob. Code. § 7051.) If they do not, or try to delay filing to injure other heirs, they forfeit their role as executor. (Estate of Alfrey (1938) 12 Cal.2d 255, 257.) Even without a will, an estate usually passes through probate so the assets can be valued and distributed in line with intestacy principles.
How to locate a will in the public record
An interested person can appear to respond or object to a will. (Prob. Code § 1043.) This is why it someone may try to find a will in the public record or find which court the probate hearing will be at.
If you know you are a beneficiary of the estate, and the executor is refusing to provide you with a copy of the will you can obtain a copy for a fee. By going to the office of the County Clerk an employee in the office can search their records for it. (Prob. Code § 8200.) If the will has been filed, it should be there. It may also be obtainable in online court records.
After a will has been filed with the court, an attorney can help locate the will if the court it was filed in is unknown to you.
What is an example of a will in the public record?
For example, Julie’s mom appointed her to be the executor of her will. Upon her passing, Julie must file the will with the court to begin the probate process and ensure her mother’s assets are distributed appropriately. Once she has done this, the will enters into the public record. If she has a relative Shawn who says he is in the will or should have been in the will Shawn could dispute the will in probate. If Shawn knew about the will it would be easy for him to dispute the will as he knew where it was filed. If Shawn was estranged, he may need to look for the will through the county clerk’s office. He would be able to do this even if he was not a relative of Julie or Julie’s mother. Because of this a “stranger” couldtry to dispute the will, providing he had a valid claim to do so. This can draw out the probate process.
If Julie’s mother was famous or wanted to keep her assets out of the public eye, she could have set up a trust. Trusts are not required to be filed with the court and could prevent an estranged relative or a stranger from trying to state a claim to her assets.
Conclusion
Wills are an important tool in distributing or selling a decedent’s assets like real property. With wills being in the public record, anyone with an interest can object to a will in a probate proceeding. The distribution or sale of real property from a will may cause further disputes leading to disagreements between family members or beneficiaries. If sale or disposal of property is a point of contention, partition may be a solution. At Underwood Law, our partition attorneys can help you navigate your partition action efficiently and with care. We are here to help.
An important part of end-of-life preparation or just future planning is creating a will. A will is a document that dictates what your final intentions are regarding your assets and property. (Estate of Lopes (1984) 152 Cal.App.3d 302, 305.) Because of how a will determines inheritance and any future interest people may have in your property, after passing through the probate process, wills become public record.
What is a will?
A will is an estate planning tool. It is formally called a last will and testament, because it is the testator’s (or your) final intentions of what will happen to your assets following death. All of the assets owned by a decedent at their death constitute their estate. The will lists out what will happen to that estate. Specifically, a will names specific people or groups of people who will or will not receive specific assets. (In re Kuttler's Estate (1958) 160 Cal.App.2d 332, 335-336.) In order to be operative and thus enforceable, a will must appoint an executor. (McMahon v. State Bar (1952) 39 Cal.2d 367, 370-371.) This person ensures the will goes through the probate process.
Certain property is exempt from a will and can be passed through non-probate asset transfers. These include trust distribution, assets owned in joint tenancy because those have a right of survivorship, community property with right of survivorship because that remains with the surviving spouse. (Placencia v. Strazicich (2019) 42 Cal.App.5th 730, 736-737.)
Why is it important to have a will?
A will ensures your surviving family members or other people in your life know what to do with the assets comprising your estate. The court will adhere to what you have spelled out in the will if your intent, or testamentary intent, was clear. (Estate of Wong (1995) 40 Cal.App.4th 1198, 1205.) This means you competently and truly meant for this document to determine who would get what assets. (Estate of Williams (2007) 155 Cal.App.4th 197, 212.) A will spells out how the assets will be distributed which helps avoid any confusion or disagreements with how things are divided. It also ensures your wishes will be followed. (Eyford v. Nord (2021) 62 Cal.App.5th 112, 121.) A will sets out how assets are to be distributed but also may direct property to be sold. (Cal. Prob. Code § 10000.) That is why filing a will with the probate court is important.
How do wills become public record?
In order to distribute assets, the will must go through probate. (Reed v. Hayward (1943) 23 Cal.2d 336, 339.) This requirement ensures a will is made public record. Once the will is lodged with the court to open probate, the will is public record and can be accessed by anyone even if they are not included in the estate or related to the decedent.
The executor of the estate has a duty to file the will with the probate court. The executor is designated by decedent and will file with the court asserting they are the executor. (Cal. Prob. Code. § 8422.) Once the executor has filed the will, the estate passes through a formal probate process. (Estate of Helm (1935) 6 Cal.App.2d 752, 755.) This proves the authenticity of the will and appoints an executor if one has not been designated already.
When the executor files a will they also file a petition to open probate with the court which sets a date for the initial probate hearing. (Prob. Code. § 1041.) If there is no will, the executor can petition for letters of administration which triggers intestate succession, and the court will appoint an administrator for the estate.
The executor must file with the county superior court where the decedent lived for 30 days prior to their death. (Prob. Code. § 7051.) If they do not, or try to delay filing to injure other heirs, they forfeit their role as executor. (Estate of Alfrey (1938) 12 Cal.2d 255, 257.) Even without a will, an estate usually passes through probate so the assets can be valued and distributed in line with intestacy principles.
How to locate a will in the public record
An interested person can appear to respond or object to a will. (Prob. Code § 1043.) This is why it someone may try to find a will in the public record or find which court the probate hearing will be at.
If you know you are a beneficiary of the estate, and the executor is refusing to provide you with a copy of the will you can obtain a copy for a fee. By going to the office of the County Clerk an employee in the office can search their records for it. (Prob. Code § 8200.) If the will has been filed, it should be there. It may also be obtainable in online court records.
After a will has been filed with the court, an attorney can help locate the will if the court it was filed in is unknown to you.
What is an example of a will in the public record?
For example, Julie’s mom appointed her to be the executor of her will. Upon her passing, Julie must file the will with the court to begin the probate process and ensure her mother’s assets are distributed appropriately. Once she has done this, the will enters into the public record. If she has a relative Shawn who says he is in the will or should have been in the will Shawn could dispute the will in probate. If Shawn knew about the will it would be easy for him to dispute the will as he knew where it was filed. If Shawn was estranged, he may need to look for the will through the county clerk’s office. He would be able to do this even if he was not a relative of Julie or Julie’s mother. Because of this a “stranger” couldtry to dispute the will, providing he had a valid claim to do so. This can draw out the probate process.
If Julie’s mother was famous or wanted to keep her assets out of the public eye, she could have set up a trust. Trusts are not required to be filed with the court and could prevent an estranged relative or a stranger from trying to state a claim to her assets.
Conclusion
Wills are an important tool in distributing or selling a decedent’s assets like real property. With wills being in the public record, anyone with an interest can object to a will in a probate proceeding. The distribution or sale of real property from a will may cause further disputes leading to disagreements between family members or beneficiaries. If sale or disposal of property is a point of contention, partition may be a solution. At Underwood Law, our partition attorneys can help you navigate your partition action efficiently and with care. We are here to help.
