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  • Writer's pictureDuisters Law, APC

My parents made a will, so I can give myself my inheritance, right? Wrong.

Chances are, you've contemplated this question if your parents or loved-one recently passed away and left a will naming you as a beneficiary. Well, can you just give yourself the property listed in the will as yours? The answer is, no. A will alone does not prevent court supervised probate proceedings, in fact, it mandates it under California probate law, whether the will was drafted by an attorney or written on a napkin - it makes no difference.


California probate code section 8220 through 8226 sets forth rules for proving a will in court. Once the will creator dies (known as the testator), the will must be deposited in the court where the decreased person lived and a petition for probate and letters testamentary must be filed ($435 fee) in order to prove the will and have it admitted to probate and appoint an executor. In other words, a judge must determine if the will is valid, make sure no one objects to the will (claiming it is not valid) and the judge must determine if the named executor (the person who in in charge of carrying out the details of the will) is proper to act.


Once that happens, the executor can begin gathering all the assets of the deceased person. After at least 4 months has passed and all decedent's debts paid, only then can the executor petition the court (yes, another petition at $435!) for approval to distribute inheritance to the named beneficiaries in the will.


So, to summarize, the only way you will get your inheritance is after a long and complicated court process. If you want to try tackling it yourself, you have the right to do so; however we don't recommend it since a small mistake could delay your inheritance for months or even years. A properly drafted trust could have prevented this.


Visit duisterslaw.com for more information on probate in California and how a living trust may be a better option for your family

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