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Common Scenarios in California Probate Cases

In prior posts, I’ve gone over how to make a will in California as well as what happens to your stuff in the event you die without a will. The former is, hopefully, pretty useful. The latter is hopefully useful too, if only to give you something to avoid.

Let’s suppose, however, that you’ve made a will. This post will briefly go over what will happen to that will in the event you do pass away. Or, if you want to think of it this way, this is the situation your friends, family, heirs, etc will have to deal with once you’re gone.

Because it would be too easy otherwise, there are actually several scenarios that commonly occur in California. I’ll try my best to go over each of them and introduce the terms that apply to those situations. One thing to remember is that the goal will be to handle, take care of, or dispose of the deceased’s estate. The legal term for this is “administration”. The authority to administer a deceased’s estate arises from the issuance of “letters” under California Probate Code section 8400(a).

  • Scenario #1 is where the deceased died without a will of any kind. This is called “intestacy” or “intestate succession” and, in a previous post, I went over how California handles that. The letters applicable to this situation are “Letters of Administration”.
  • Scenario #2 is when the deceased person died with a will, the will names someone to administer the deceased’s estate, and the person is able and willing to serve. Such a person is called an executor if they are male and an executrix if they are female, because history. The letters applicable to this situation are “Letters Testamentary”
  • Scenario #3 is when the deceased person left a will, but either the will did not name someone to administer the estate or the person who is named will not or cannot serve in that capacity. One common scenario is that the person named in the will to administer the estate has died already themselves and the deceased person never bothered to update their will to name a new person to serve as administrator. The letters applicable to this situation are “Letters of Administration with Will Annexed”.

For Scenarios #1 and #3, it is possible to ask for emergency or temporary letters (called Letters of Special Administration) if there is a situation that needs attention right away before a formal Letter of Administration can be issued.

As always, this post is only intended to be a brief primer on the applicable law. If you have a probate situation in California, you should strongly consider finding a lawyer to assist you. If you do have to hire a probate lawyer in California, do know that it is not necessary for you to have an upfront retainer of $5,000 or $10,000 in order to do so. The probate lawyer can be paid out of the deceased’s estate as well as I explain in this video from my Youtube channel. For other videos on all sorts of legal topics, be sure to subscribe to my channel.

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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