QUESTION
What is the probate process after a parent's death?
Asked on May 23rd, 2013 on Estate Planning - Texas
More details to this question:
My father just recently passed away and he was temporarily staying in a separate state with his wife and family. Does a probate automatically get appointed by a judge or by the state in which he died in? Do you have to hire a probate? What are the steps that need to be taken to set in motion the probate process?
17 ANSWERS
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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The person named in father's will needs to petition the court to be appointed personal representative. Probate should be started in the county he called home, or where he had assets; if there is real property, there will have to be a probate in that state. Get a lawyer to help with this process. It is far less expensive to do it right from the beginning than to fix it after the fact.
Answered on May 27th, 2013 at 7:58 PM
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You need to call a probate lawyer to discuss the situation. Nothing is automatic, someone has to take steps to probate a deceased person's estate. If he had a surviving spouse, she would have priority and likely be his heir unless their is a will or the marriage was not long term. The state and county where your father owned property is where the probate would be initiated. If he owned no real property, the state where he died would be the proper place.
Answered on May 24th, 2013 at 2:26 PM
Litigation Attorney serving St. Louis, MO
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Probate Law Center Richard J. Keyes, PC
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Probate is done in the state where the decedent is domiciled. Since he was temporarily staying in another state, that is not considered to be his domicile. Only assets in your father's name only will go through probate. For most married couples, they own everything in joint names, so upon the first to die, there is no probate estate. Therefore, the first question to ask is what assets did your have in his name only that had no beneficiary designation upon his death. This includes payable on death bank accounts and certificates of deposit, transfer on death for personal property that is titled such as boats and automobiles, and beneficiary deeds for real estate. If there are no assets, there is no probate. The next question is what is the value of the assets that go through probate. Most states have procedures for small estates. In Missouri, the small estate procedure is for net assets totaling less than $40,000. If the net assets total more than $40,000, then you need to do a full probate estate. In Missouri, you need to hire an attorney for probate. For estates greater than $40,000, the person probating the estate is called the personal representative. This person can also be called the executor or executrix. This person is named in the will. If there is no will, then this person applies for letters of administration and requests to be appointed personal representative. The court does not automatically do this. The attorney will prepare the necessary papers for you to sign and get appointed.
Answered on May 24th, 2013 at 11:01 AM
I am sorry for your loss. Whether his estate will be probated at all will depend on the following factors: 1. What was the nature and title of his property. 2. The terms of his Last Will. This is where he would have nominated an executor. 3. His home state of residence. For additional information, consult with an attorney specializing in estate administration.
Answered on May 24th, 2013 at 11:01 AM
Business Law Attorney serving Bingham Farms, MI
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James T. Weiner, P.C.
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To put it simply Someone, usually the primary heir, hires an attorney and files a probate action in the county where the deceased last resided. Then all beneficiaries are notified and the court appoints a personal representative After that all assets are gathered, debts paid and the rest distributed At times if real property is in multiple states multiple probates may be needed (one in each state where there is property) SO It does not happen automatically. Probate and attorneys can get expensive so the question is are there sufficient assets to worry about.. I advise you to gather all the information you can about your fathers assets and contact an attorney to discuss if it is worthwhile to file a probate action if your apparent step mom does not.
Answered on May 24th, 2013 at 11:01 AM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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No, probate is not automatic. Venue is appropriate in the state where the decedent was domiciled at the time of death. There can be issues in determining which state that is. Once that has been clarified, an interested party files an application or petition for probate. If your father died in another state and there are no assets there, you can open probate in Michigan, in the county where there are assets. If he was married, the wife would have priority for appointment as personal representative. Feel free to visit my website. I have a detailed description of the probate process posted there. I am very sorry for your loss.
Answered on May 24th, 2013 at 1:18 AM
Business Law Attorney serving Livonia, MI
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Gerald A. Bagazinski
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It depends on where is property is located and what state he was legally domiciles (ie. Drivers License, Registered to Vote, etc)
Answered on May 24th, 2013 at 1:18 AM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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The probate process takes place in the state where the decedent was a resident. Where he died does not really matter. If his wife is still living, probate will probably not be necessary, as long as his wife has access to their assets.
Answered on May 24th, 2013 at 1:17 AM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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Assuming your father died with assets of at least $150,000.00 in California, and this was the state of his residence, a petition for probate would be filed in the county of his last known residence, and you should seek the assistance of a probate lawyer to handle the matter, and who are paid out of the assets of the estate.
Answered on May 24th, 2013 at 1:17 AM
Estate Planning Attorney serving Wilmington, DE
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Reger Rizzo & Darnall, LLP
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Probate us wherever he owned property or had assets. Executor or heirs would open the estate.
Answered on May 24th, 2013 at 1:16 AM
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You should speak with an attorney in the state of residence of the Decedent. Also if he owned real property in another state an attorney there should be consulted. Without more details the response to your question would have many alternatives and outcomes. Best of luck to you.
Answered on May 24th, 2013 at 1:14 AM
Probate Attorney serving Palatine, IL
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Law Offices of Robert H. Glorch
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It's not automatic. To set the probate process in motion, someone (e.g. the executor in the will or another family member) has to petition the court to be appointed. Normally the person who wants to file the petition will hire a probate attorney to represent them. The question of where the probate estate should be opened is an issue of fact. You mentioned that he was temporarily living in another state. Probate should be opened in the state where the decedent last had his permanent residence. So for example, if I live in Illinois, but happen to die while on vacation on Florida, my estate should be in Illinois even though I died in Florida. It's a little trickier if you're father was actually stayed in another state for a period of months, or years. It's really a question of fact and should come back to where he intended to live on a permanent basis. But this issue can be the subject of dispute at times, in part because state inheritances laws can differ.
Answered on May 24th, 2013 at 1:13 AM
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One files for probate within 30 days of death, and also files a death certificate.
Answered on May 24th, 2013 at 1:12 AM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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Hire a lawyer to file a petition for probate and assist with the estate administration. This should be in the state of his domicile (permanent residence). Additional probate administrations may be necessary in states where he owned real property. Did he leave a will? If so, it probably nominates an executor. If not, then his wife has priority to serve as administrator, but if she does not want to do so, or if she doesn't act within a month, then one of his children can file the petition.
Answered on May 24th, 2013 at 1:12 AM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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Somebody needs to apply for probate. In this case, it would probably be his wife and it would be started where he died. However, you say temporarily. Was he on vacation or was it an extended stay? Did he tell you it was temporary so you wouldn't get mad? Regardless, if he really live in your state, I suppose you could open up a probate there, but eventually someone will win the battle of the probate forums. If the wife opens in the other state, she can then use that to open a probate in your state to handle his property there. You need to talk with an attorney and his wife and figure out the best way to proceed.
Answered on May 24th, 2013 at 1:11 AM
The probate should be where his permanent residence was. If he was only temporarily away from home then that location should be disregarded in determining where the site of the probate action ought to be. The probate action should be initiated by the executor. While you do not have to hire an attorney it is highly recommended to ensure that the process goes smoothly and that everything gets done that should be done.
Answered on May 24th, 2013 at 1:10 AM
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I'm sorry to hear about your father. A personal representative is not appointed by a probate court automatically you have to apply. The first step is to determine the assets and liabilities of the estate. Then you can choose which probate procedure to apply.
Answered on May 24th, 2013 at 1:09 AM