HOW DO I KNOW IF PROBATE HAS OCCURRED AND/OR IF THERE WAS A WILL?

There are some occasions where an individual may not be privy to whether a family member provided for them in their will, in life insurance, in a trust, or in some other manner.  This can arise where family members have become estranged; a common scenario involves remarriage of a parent, the new spouse of which does not get along with the children.  However, it can occur with relatives who live far away, or with whom an individual otherwise does not frequently communicate.  Executors and trustees of wills and trusts are legally required to give notice of death and provide copies of the relevant documents to the beneficiaries thereunder…but this doesn’t mean they always do.  So how do you know if you are, or should be, a beneficiary of a relative’s estate?

 WILL DEPOSITS - PROBATE COURT

In California, the custodian of an individual’s will is legally obligated to lodge the will with the probate court in the county in which the decedent lived within 30 days of death.  The will becomes public record once lodged, meaning you can access and review it.  That said, many people are not aware of this requirement, and/or choose to ignore it if probate is not necessary.

CHECK THE PROBATE COURT RECORDS FOR PROCEEDINGS

If the decedent resided in California, had assets which were subject to probate (non-trust assets, and assets which were neither jointly titled nor subject to beneficiary designations), and had an estate over $150,000, their estate should have gone through probate.  Probate records are public, so you can check the records of the Probate Court in the County where the decedent resided.  Further, if you are an heir under the will, or are an heir at law, you should receive notice of the probate. If the decedent held real property outside of California, then an “ancillary probate” will have to be filed in that state, so if you’re aware of non-California realty, you can check the probate courts in the county where the land is located, too.

FILE PROBATE

If you believe that your relative’s estate should have gone through probate, then you can actually petition for probate yourself – this has a good chance of forcing the person holding the will to disclose the existence (or non-existence) of a will, lest the property go through probate as though the decedent were intestate (without a will, meaning property will be subject to disposition under California’s intestate laws). And if there really isn’t a will, forcing probate will ensure your inheritance rights as an heir, if indeed you are one under California’s intestate laws (described here)

PAY ON DEATH ACCOUNTS

If you were the beneficiary of a pay-on-death account, such as life insurance or a retirement account, then the institution holding the account or policy should make an effort to contact you.  Otherwise, if you know your relative was a client of, or used, a particular institution, you can contact them and ask if you were a beneficiary under a life insurance policy (or other asset); if the institution refuses to talk to you, then you very likely are not a beneficiary.  However, it is usually worth your time to make more than one call, to a different representative, to see if you get a different answer.

 CHECK PROPERTY RECORDS

If you know of real property (held in California or outside of California), you can check the real property records for title and subsequent transfers of the land.  This information is public record, and – in California – is available from the county recorder’s office.  You can determine who the owner was before your relative’s death, and who the owner was after.  This may give you some additional information regarding the existence of a will. For example, if your father owned property in his name only, remarried a year before his death, and after his death a grant deed was recorded giving the property to the new wife, this is a good indication that there was a will (since it did not pass by joint tenancy or intestate succession). Generally, this would mean that probate occurred, also. Additionally, if a quitclaim deed was recorded a day before your relative’s death, this may be an indication that something untoward occurred, and might be worth your time and money to hire a probate attorney to do some further investigation.

CHECK UNCLAIMED PROPERTY RECORDS

It may take years, but eventually unclaimed insurance proceeds, bank account funds, retirement funds and other assets will end up in the state’s unclaimed property funds.  In California, you can check unclaimed property listed in your name or your relative’s, online here.  Other states often provide online databases as well.

ASK YOUR RELATIVE’S PROFESSIONALS

If you know the name of the accountant or lawyer that your relative used, they may be able to provide some information about a trust or will.  Keep in mind, however, that if the attorney now represents (for instance), the new spouse as trustee or executor, he or she may be limited in what they can tell you.