169: Understanding Probate Part 3: How to Get Your Will Admitted to Probate

In this episode of Absolute Trust Talk, host Kirsten Howe and associate attorney Jessica Colbert explore the critical steps in getting a will admitted to probate. They explain why lodging an original, properly executed will with the county superior court is essential, and how witness testimony can authenticate the document. They also examine the pitfalls of relying on a photocopy—or finding out too late that the original has been lost or destroyed. Finally, they underscore the importance of keeping your estate documents organized to avoid future probate headaches. If you’re preparing your first will or need to update an existing one, don’t miss this critical conversation on ensuring your final wishes stand up in court.

Time-stamped Show Notes:

0:00 Introduction

0:40 When lodging the original will, did you know that you must submit the current wet-signed will to the county superior court (not an older or photocopied version).

1:48 Next, Kirsten and Jessica discuss how an attestation clause (witness statements under penalty of perjury) helps ensure the will is recognized by the court.

3:45 If your will is holographic (entirely handwritten), it requires an additional step: someone familiar with the testator’s handwriting must confirm its authenticity.

6:37 If only a photocopy exists, the court may suspect the original was revoked or destroyed—making it crucial to keep track of the original.

Transcript:

Hello, and welcome to Absolute Trust Talk. This is our podcast at Absolute Trust Council. I’m Kirsten Howe, the managing attorney at our firm, and with me again today is Jessica Colbert, one of our associate attorneys. We’re doing a short series on probate. Today, we will discuss how to get a will admitted to probate. In the last episode, we talked about what exactly a will is. Now we’re taking the next step: how do we get that into probate? How do we initiate the probate process with our will? So, Jessica, I’ll let you start.

There are several requirements for getting a will admitted to probate. The first is that you must lodge the will. Basically, this means you send the will to the County Superior Court, where it is kept in their records indefinitely. The will you send to the court must be the original—with an actual wet ink signature, not a photocopy—the one that was genuinely signed, right? Also, I’m just going to interrupt here; we often encounter clients who find this interesting. Many of them question what we mean by “original will.” It doesn’t refer to the very first will written in 1955, but rather the current will, in its original form, not a photocopy.

That’s a good point that just came up last week, not the one from 50 years ago or the longer discussion from a few years back, but it was actually signed with a pen, right? Okay, and another requirement for a will to be admitted to probate is that the will must be authenticated. Kirsten, can you tell us a little bit about how you authenticate a will? Well, usually, when we write wills for our clients, we prepare what’s called a self-authenticating will. This means that the witnesses to the will—the people present when the testator signs it—also sign the will. That’s what witnesses do. As they are signing, they provide a declaration under penalty of perjury stating that everything is true: they saw the testator sign this will. This is known as an attestation clause. They declare under penalty of perjury that they witnessed this event.

The importance of this is that when a court considers evidence, the witness statements must also be under penalty of perjury. We all watch courtroom shows, and we’ve seen this; witnesses always have to affirm that they will tell the truth under penalty of perjury. If they don’t, the court cannot treat their statements as valid testimony, and someone must confirm that the event actually occurred. So, we want to ensure this is done correctly in the document because we wouldn’t want to have to bring those witnesses into court 20 years later to make that statement.

It’s very important to have that attestation clause at the bottom of the will, especially if it’s a holographic will. This situation doesn’t come up very often, but we’ve had one or two cases. Remember, if you watched our last episode, a holographic will is one that is entirely in the testator’s handwriting. Usually, when someone writes a will like this, they don’t include an attestation clause or have witnesses; they’re often sitting at home alone, writing it out. Therefore, we need another person who is familiar with the decedent’s handwriting to verify it. This person needs to be willing to, under penalty of perjury, affirm to the court that yes, this was indeed written by that person. We do this in writing and it’s called a declaration. Ultimately, someone must authenticate that this is the person’s will and signature.

What about in a case where it’s not a holographic will? It has the two witnesses, but we don’t have that attestation clause under penalty of perjury.

As I mentioned earlier, we need to locate those witnesses and ensure they submit an attestation clause. I believe that’s why they require two witnesses—having at least one makes it more likely we can find someone. Personally, I don’t think I’ve ever had to do that. There was a case where we thought we might need to, but we found another way to proceed. You really want to avoid that situation, as finding witnesses can be a challenge. They don’t always have their names typed below their signatures. While we always include a typed name beneath the signature, it’s not mandatory. So, you may end up relying solely on the signature. If you looked at my signature, you could probably read my name, but many clients have signatures that are unreadable. Tracking someone down years after the signing can be increasingly difficult, right?

You definitely don’t want to make that mistake, and you really want witnesses to testify under penalty of perjury. Ideally, they print their name and sign it, or somebody prints their name. That’s the best option because it covers all the bases.

Okay? Earlier, I talked about how we need an original will. What if we don’t have that, but we do have a photocopy of the will? Yeah, that’s a problem because there are two legal ways to revoke a will. One way is to write a new will stating, “I hereby revoke all prior wills,” which is what we always do. Every time we draft a will for a client, we include that right in the will. The other way to revoke a will is to destroy it—rip it up, burn it, whatever. But if the only thing you have is a photocopy, it raises suspicion that this decedent destroyed their will and that there really is no original will. So, you do have to go through a procedure where you submit documentation and testimony stating that there’s a lost will because we can’t find the original. All we have is a photocopy, and you need supporting witness testimony. For example, I know my uncle had a will. He showed it to me three days before he died. I don’t know where it is, but this is the copy he showed me, you know, that he kept in the folder with the original or whatever. You have to prove that this is actually his original will. And as we will probably discuss in a future episode, family members have the opportunity to object and say, “No, he destroyed that will. That’s not his will,” or whatever they want to claim. So that’s a challenge. If you’re listening out there and you have an estate plan, it’s very important to keep track of that original will. Don’t lose it, and don’t hide it in a safe that nobody knows about. It’s crucial to keep track of that original will.

Okay, so hopefully, that’s a little bit of knowledge that you can apply in your daily life today. I don’t know how you’ll apply it, but it might help you down the road. Jessica, thank you. We are very glad you could join us today, and we look forward to connecting with you next time.

Resources Related to This Episode:

[AD] Estate planning addresses many vital factors about your future and legacy. Where do you get started if you don’t have an estate plan? If you do, how have new laws and life transitions changed? Will your plan still protect you? Regardless, you deserve control over your wants, needs, goals, and hopes for the future. We can help you understand your options and, legally, how you will best be protected at all touchpoints. Get started today by scheduling a free discovery call so we can discuss your needs. Visit https://absolutetrustcounsel.com/scheduling/ or call us at (925) 943-2740.

Absolute Trust TalkAttestation ClauseEstate AdministrationEstate PlanHolographic WillJessica ColbertKirsten HoweLegal AdviceLost WillOriginal WillPodcastsProbateRevoking a WillWet Ink SignatureWill AuthenticationWitness Requirements
Kirsten Howe:
Related Post
  1. 174: Part 1: The Valuation Puzzle: What Your Assets Are Really Worth
  2. 5 Ways You Can Fill Out a Beneficiary Designation Form (and Who You Can Nominate!)
  3. 173: Stop Family Feuds: Expert Tips for Probate Real Estate Sales
whatsapp
line