Filing for probate when there are a bunch of children

Filing for probate when there are a bunch of children often requires planning and thinking. That is a probate when the decedent had many children can bring pitfalls to the petitioner for probate. This is particularly true when there is no will (i.e. intestate succession) or a poorly drafted will or a will that is executed in questionable fashion.

The situation with the biggest risk of problems is when there is no will. For anybody a will is important. For a person with many children the importance is even higher. I spoke to a potential client recently whose parents are both deceased. They left behind 8 children. The question I asked my potential client is “do you think that all of your siblings will be agreeable to you serving?” They answered in the affirmative but with a pause. This potential client is smart and they saw the writing on the wall I was alluding to… MIGHT one person object? You only need ONE to create a problem. Plus, how many of your siblings might be susceptible to undue influence from their spouse or children? With that many kids something might go wrong because one objector can delay the probate for everybody!

The above situation is compounded when one of the siblings has pre-deceased mom or dad but they left behind young adult children. Let’s be honest as we were all young adults at one time. The single smartest group of people in the world, perhaps next to teenagers, are young adults. They know EVERYTHING. Just ask them! An 18-23 year old college student getting (bad) advice from their frat bros or their girlfriend is a recipe for disaster. They might object by accident by showing up in Court, being clueless, and the Judge decides to push everything out 60 days. In the meantime the decedent’s house can’t be sold and bills are piling up!

The above situations are definitely less when there is a will that properly names an executor. That takes most of the risk of these unnecessary delays out of the picture. However, the key is a properly drafted and executed will! Pay attention to what the will says (really read it carefully) and then make sure you execute it right. That means to sign it with witnesses as the law proscribes. DO NOT NOTARIZE A CALIFORNIA WILL. I can’t understand why some notaries think that’s ok. It is NOT ok. Do not notarize a will. GET TWO WITNESSES, who are not related to you, who are not named in the document, and have them watch you sign (ideally). Then you sign with them present and watching. That’s all ideal. A holographic (handwritten) will is another option but, in my opinion, a lawyer drafted will is the best alternative and reduces risk of contests and objections the most.

If you have a probate situation with a bunch of kids, or other interested parties, contact me to discuss a game plan!

-John Palley

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