Q: My father passed away a week ago and I have a will in hand dated 1990. Is it valid? When should I file it?
In the 1990 will my mother and I are beneficiaries. They divorced in 1991 and he remarried in 1998. Does this make the entire will invalid or just his ex-wife's portion? Do I have to wait 40 days to file the will?
A: Assuming the 1990 Will was properly drafted, executed, and witnessed, is valid unless another Will superseded the 1990 Will. I would have a probate attorney review the 1990 Will and the divorce decree to see if there is any conflict. I would also check with the new spouse to see if she has an updated Will. You don't need to wait 40 days to lodge the Will with the Superior Court probate division in the county where your father resided. Good luck with this.
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A:
I'm sorry for your loss. In California, a will is presumed to be valid unless there is evidence to the contrary. A will from 1990 may still be valid, but it's possible that your father created a more recent will that revokes the 1990 will.
If your father's ex-wife was named in the will and they were divorced, then her portion would likely be considered invalid unless the will specifically provides otherwise.
You don't need to wait 40 days to file the will, but it's important to file it in a timely manner. The will should be filed with the superior court in the county where your father lived, and you should contact an attorney to help you with the probate process. The probate process involves the court overseeing the distribution of your father's assets and paying off any debts.
The California Probate Code governs the administration of wills and estates. Here are some relevant sections:
Section 6110: This section specifies the requirements for a valid will in California, including that it must be in writing, signed by the testator, and witnessed by two individuals.
Section 6111: This section addresses holographic wills, which are wills that are entirely handwritten and signed by the testator.
Section 6400: This section addresses the revocation of wills, including circumstances in which a new marriage or divorce affects the validity of a will.
Section 8200: This section addresses the filing of a will with the probate court, including the timing of the filing and the necessary information to include in the filing.
These are just a few examples, and there may be other relevant sections depending on the specific circumstances of the case.
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