Determining Whether Decedent Died Testate or Intestate
If there is a Will, whether typed, holographic, or statutory, the Will controls disposition of a deceased person’s property. If a Will is known to exist and is available there should be few problems. However, if it is unknown whether the decedent had a Will or the deceased had a Will but it cannot be found, an effort should be made to find it.
- First, start your search in obvious places, including file cabinets, desk drawers, and closets at home and work. Go through the deceased person’s papers. It is possible that he or she may have hidden the Will.
- If that does not turn up anything, you may know that the deceased person consulted with an attorney. If you do not have contact information, and you have the name of the attorney you might contact the California State Bar Association to find out if the attorney has contact information.
- You can question others, including the decedent's employer who may review the deceased person’s workplace and files. Inquiry can also be made of the decedent's financial advisor, close personal friends, and any others likely to have possession of or to know the location of a Will. Inquiry should also be made of persons that the deceased person may have chosen as the executor.
- If you are an immediate family member and know the deceased person had a bank account or bank accounts you can contact them. They may let you know if the deceased had a safety deposit box. A person who has a key to a safe deposit box in the deceased person’s name may obtain access to the safety deposit box, on presenting both of the following:
- Proof of the decedent's death, in the form of a certified copy of the death certificate or a written statement of death from the coroner, treating physician, or hospital or institution where the decedent died; and
- Reasonable proof of the identity of the person seeking access.
- If these requirements are met, the financial institution must permit the person to open the safe deposit box under the supervision of an officer or employee, remove instructions for the disposition of the decedent's remains and, after a photocopy that will remain in the safe deposit box is made, remove the Will(s). The person may not remove any other items.
If a Will is lost or cannot be found, California probate law presumes that the deceased person destroyed the Will thereby revoking the Will. In that event, the estate will likely be probated intestate. Please refer to Probate Without a Will and What Happens in California if You Cannot Find the Will?.
If you wish to gain more information on Orange County, California probate or if you need the general assistance of a probate lawyer, please contact me for a free consultation. I will spend time with you to answer your questions. You can reach me by phone at (949) 243-0408, by email at firstname.lastname@example.org or through my online contact form.