QUESTION
If I don't wish to go through probate and pay off her debts, do I still have to file her will with a Court and is it a law that to go to probate?
Asked on Jan 22nd, 2013 on Estate Planning - Arizona
20 ANSWERS
Under Nevada law, the will is supposed to be filed within 30 days of death. You are not required to file a probate proceeding. If you are not going to get anything out of a probate proceeding, don't file one.
Answered on Jan 29th, 2013 at 8:53 PM
Litigation Attorney serving St. Louis, MO
at
Probate Law Center Richard J. Keyes, PC
Update Your Profile
If your mother had a will, then you should file the will with the probate in the county where she was domiciled. Please note that under Missouri law, you can decline to be the personal representative (executrix). Additionally, your mother's debts only are payable out of assets of her probate estate; you are not personally liable for her debts as personal representative.
Answered on Jan 29th, 2013 at 12:50 AM
Business Planning Attorney serving Livonia, MI
at
Frederick & Frederick Attorneys at Law
Update Your Profile
Yes, you are supposed to file the Will with the court. NO, you do not need to open a probate estate, if there are not sufficient assets to cover the debts. But there ARE probate allowances and exemptions that would allow you to avoid creditor claims at least to the extent of $14k, plus funeral expenses and other administrative costs.
Answered on Jan 28th, 2013 at 10:50 PM
Estate Planning Attorney serving Wilmington, DE
at
Reger Rizzo & Darnall, LLP
Update Your Profile
If she has a probate estate you must open the estate and do the necessary filings. If she does not have a probate estate you only need to file the will and death certificate.
Answered on Jan 25th, 2013 at 9:37 PM
You are required to file the Will but not to open a probate. Depending on your county, the county clerk may have a problem doing that. You should at least try.
Answered on Jan 25th, 2013 at 9:34 PM
Trust Law Attorney serving Hayward, CA
at
Law Office of Norman E. Reitz
Update Your Profile
The person in possession of an original will in California is required to deposit it with the Clerk of the Superior Court within 30 days of death. If the filing is not done the person in possession is responsive financially to any other person who is harmed. Probate is required only if there are assets that must be passed to the named beneficiaries. If the value of the estate is under $150,000, an informal Summary Probate Proceeding may be used.
Answered on Jan 25th, 2013 at 9:34 PM
If the assets of the estate are greater than $100,00 or there is real property involved, you need to go through formal probate.? If no one is contesting the will and it has a lesser value, you can go through a simpler process.? Look at the Nolo Press books on estate practice.
Answered on Jan 25th, 2013 at 9:33 PM
Bankruptcy Attorney serving Alpena, MI
at
Carl C. Silver Attorney at Law
Update Your Profile
There is no law that says you Must start an estate. Your only reason to do so is if you or sone one you care about would receive an inheritance if you do. If the bills exceed the assets don't bother unless you will receive an a fee making it worth your ttouble
Answered on Jan 25th, 2013 at 9:11 PM
Probate Attorney serving Newport, OR
at
Minor, Bandonis & Haggerty P.C.
Update Your Profile
If your mom owned property that needs to go through probate to transfer to you, you will have to open probate in order to ever own that property.
Answered on Jan 25th, 2013 at 8:45 PM
Whether an estate needs to be probated is a separate question and issue from the requirement to file a will when the will maker dies. Yes, you have to file the will. Make copies before you do so because it is expensive to make copies of the Will after it has been filed with the court. Whether the estate needs to be probated will depend on what type of property that was owned by your mother.
Answered on Jan 25th, 2013 at 11:35 AM
You do not need to probate unless there are property to be distributed.
Answered on Jan 25th, 2013 at 11:35 AM
2 Awards
This is a complex issue that should be addressed only after more information is obtained. While I certainly understand why you posted the question on a website, the best advice I can give you is to speak to an attorney who regularly practices in this area.
Answered on Jan 25th, 2013 at 11:35 AM
3 Awards
By law the will must be lodged within 30 days of death. If you have the will you must lodge it. To settle your mothers affairs and ultimately transfer assets you must go through probate unless the assets are jointly held or you are the named beneficiary on the title of the account. Creditors are entitled to be paid before you are entitled to receive assets as a beneficiary. You should consult an attorney who can review the Will and advise on next steps.
Answered on Jan 25th, 2013 at 11:34 AM
No, you don't have to open an estate. A creditor, including the local, state or federal government (unusual unless the debt is large) could open an estate to try and collect what is due. If there are assets in her name - real estate, bank accounts, investments, etc., neither you nor a creditor can get to them without a probate estate. Otherwise, a creditor may ask the probate court to take away any non-titled assets from her that you took.
Answered on Jan 25th, 2013 at 11:33 AM
2 Awards
It is the law in California that you lodge the will with the court. If there are assets and liabilities, you need to go through probate to deal with them. Generally the only exception would be if there is no real property and the value of the assets is less than $150k.
Answered on Jan 25th, 2013 at 11:33 AM
2 Awards
Section 75 of the Texas Probate Code will govern. Yes, you should at very least deposit the will with the county clerk's office, and let them know she died.
Answered on Jan 25th, 2013 at 11:32 AM
Estate Planning Attorney serving Marquette, MI
at
The Wideman Law Center, P.C.
Update Your Profile
If your mother died with assets in her name alone, then you will not be able to have access to those assets without going through Probate. You are only the executor once the Court issues an Order making you the executor. The will simply states your mother's preference. If she had creditors and you do not open a Probate estate, the Creditors, or someone else can step in and open the Probate estate instead so that they get paid.
Answered on Jan 25th, 2013 at 11:32 AM
Probate Attorney serving Palatine, IL
at
Law Offices of Robert H. Glorch
Update Your Profile
You have a duty to file the original will. You do not have a duty to present the will for probate.
Answered on Jan 25th, 2013 at 11:31 AM
Appellate Attorney serving Grosse Pointe Farms, MI
at
Musilli Brennan Associates, PLLC
Update Your Profile
You should consult with a attorney to determine what your rights and obligations are. Whether or not you wish to pay off your mother's debts, they are a liability to her estate. She did not have to accept her appointment of you as her personal representation.
Answered on Jan 25th, 2013 at 11:31 AM
If your mother had assets that need to be distributed as part of her estate, you may have no choice but to go through the probate process. Otherwise, there may not be any authority to gather and distribute these assets. Even if you are the personal representative for her estate, you are not personally responsible to pay off her debts - these would be paid from her estate. I recommend you consult with a probate attorney to discuss this matter in greater detail.
Answered on Jan 25th, 2013 at 11:30 AM