ANSWERS: 6
  • I don't think you can just say "I'm going to ignore the law" -- even in a will.
  • Making a will that breaks the law may invalidate the will itself. Or at least leave room for people to challenge it if there's someone who doesn't like your decisions.
  • Not all wills have to go through probate. My grandmothers didn't. I even brought it to an attorney and she said it didn't need to go through probate.
  • The laws regarding probate supersede the will. You cannot break the law in a will, it could invalidate the will. This is why wills should be written by lawyers.
  • My understanding of probate law is that all estates must go through a probate period, at least here in California. During that probate period, all outstanding bills are paid and any assets (house, bank accounts, etc.) that are not specifically addressed by a will, or don't have a designated beneficiary, must go before the court for disposition. Probate really isn't that big a deal, I'm doing my mom's now. It is just legalizing that all of her affairs are in order. You only pay the lawyer according to how much of the estate has to go before the court. So anything addressed in the will isn't considered part of the probate process.
  • If the will is not probated, nothing happens! Probate of the will cannot be avoided. Not under any circumstances or language in the instrument. Why? Because any will MUST be filed for probate and be declared valid (admitted to probate) before it has any legal significance. (See for example the Uniform Probate Code Section 3-102 *) Until the document has been declared valid as the last will and testament of the maker, it has no more legal consequence or usefulness than last week’s newspaper. And there are good reasons why that is so, not the least of which is to prevent fraud. But it also it should be understood that the right of the surviving kin to succeed to the assets of the deceased kin is NOT a fundamental legal right. The right to inherit property is a CONDITIONAL PRIVILEGE granted by the state. (Its a principle carried over from English common law that only the King could authorize the succession of property from one generation to another.) The three essential purposes of probate are: 1. To determine that the instrument offered for probate is the last will and testament of the deceased. 2. To see that all outstanding taxes and debts owed to creditors are paid before distribution to heirs and beneficiaries. 3. To see that the wishes of the maker as to distribution of remaining assets as expressed in the will are carried out. There are such things as nonintervention wills whereby the executor is permitted to settle the estate without judicial intervention. But no person can act with respect to the assets of the estate with the powers of an executor without first being appointed by the court. And a person cannot be appointed as executor until the instrument that nominates that person to serve as the executor as been admitted to probate. To try to avoid that process results in a Catch-22. Sax [*] “To be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of informal probate by the Registrar, or an adjudication of probate by the Court." Uniform Probate Code Article III, Part 1, Section 32-102

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