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What if There is no Will?

If a person dies in Orange County, California without a Will (known as dying "intestate"), the Orange County Probate Court will appoint a personal representative (known as an "administrator"). The major difference between dying testate and dying intestate is that an intestate estate is distributed according to California state law (known as "intestate succession"). A testate estate is distributed according to the instructions left by the decedent in his or her Will.

The Presumption Associated with a Lost and/or Destroyed Will

The fact that a Will was either lost or destroyed does not have to be the end of the story for a beneficiary of the Will seeking to have it admitted into probate. If an original Will was in the possession of the decedent and if the original Will cannot be found, the law presumes that the decedent destroyed the Will with the intent to revoke it. (See California Probate Code §6124.)

This presumption of revoked Will sounds harsh, and often has an unintended result, but there is a bright side to this law. The presumption is not absolute. For example, if evidence is produced showing it was possible the original Will was destroyed because a disinherited relative had ample opportunity and motive to destroy it, the assumption of revocation goes away. The Orange County Probate Court then has to decide whether to admit the Will to probate or not based on the totality of the evidence without any presumption against the Will proponent.

Assuming no copy of the Will and no evidence to overcome the presumption, the decedent's assets (except those excluded from probate) will probably pass intestate, meaning that the estate is subject to California's statutory scheme for intestate transfers.

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 wksweeney@gmail.com or through my online contact form.

Client Reviews
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Earlier this year, we were searching for an attorney to process a Heggstad Petition. We did a search on Google and read an article that was written by William Sweeney. The article was very clearly written and expressed almost the exact situation we found ourselves in, so I emailed William to interview him. He spent a good amount of time (for free) listening to the background of our situation...I highly recommend William for probate/Heggstad issues in California. Emma
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I would highly recommend hiring Mr. Sweeney for your Probate or Heggstad petition needs! He was amazing and super easy to work with! He had my Heggstad drafted and filed within 1 week from when I provided all the info to him. 60 days later, I hear that the Judge granted everything asked for in the petition. John
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Bill Sweeney and his incomparable paralegal Jennifer Fejzic represented and advised me through the probate of a parent's estate. Having practiced law myself for over 30 years, I expected expertise, precision, and wisdom -- all of which Bill and Jennifer richly delivered, promptly and at a reasonable, indeed more than fair, fee. I recommend Bill and Jennifer with gratitude and confidence. Greg