California Probate Legal Questions

Hi Sandy, Whoever has the original will is required to lodge the will with the probate court in the county where the decedent lived within 30 days of death.  However, since there is no penalty for not doing so, it is common for the holder of the will to not comply with this requirement. You can begin a probate petition with a copy of the will, and explain that someone else has the original.  Alternatively, you can file a probate petition that the person died without a will.  Last option is to file a petition for the person to give you a copy of the will, if you are a beneficiary of the will.... Read Answer

It depends on several factors.  If you are the petitioner, then it depends on which procedure you file.  If all of the assets of the estate are worth over $150,000, then the probate attorney's fees are a percentage of the gross value of all assets: 4% of the first $100,000, 3% of the next $100,000, 2% up to $1,000,000, and so forth. Most attorneys provide a free initial consultation.  Contact a probate attorney for a full consultation.... Read Answer

California has strong laws regarding elder financial abuse.   I believe that the statute of limitations there is four years.  This means that you could sue your sister for actions she took from February 2013 forward.  Eventually, you would have to prove these claims, but you will be able to subpoena both your mother's and your sister's financial records as part of the lawsuit.  You probably would need the assistance of an experienced attorney for this lawsuit. You also can seek to have your sister removed as executor by filing a petition to remove her in the probate court.  Again, you would need to make the allegations to the court and you then would have the ability to obtain financial records as part of the process.  Mismanaging estate assets and wasting estate assets are both grounds for removal.  Good luck.  ... Read Answer

If the decedent did not name any beneficiaries to the financial accounts, then there will have to be another procedure to transfer the assets to the heirs.  An affidavit would work if the total value of all assets is less than $150,000 and there wasn't any real estate owned by the decedent.... Read Answer

If each of the people named in the will were equal beneficiaries than it sounds like your aunt is definitely overstepping her rights. When did your grandmother pass and do you have a copy of the will? In a situation like this it is important to move quickly to make sure the assets of the estate can be preserved.... Read Answer

You should have an attorney draft an estate plan for her, which would include a trust to transfer the home.  If you are your mother's caregiver, or if there is any question whether or not you are the caregiver, then the estate planning attorney should have an independent review of the estate plan.... Read Answer

A will can only distribute property that is within the probate estate.  A joint account is not within the probate estate.  Furthermore, a married person can only give away her half of community property or separate property.  Therefore, this joint bank account with the decedent's spouse is not subject to distribution by the will.... Read Answer

If there is real estate, then there has to be some type of probate action to transfer the real estate.  Which process you use, depends on the value of all of the property. Otherwise, if there is only personal property (no real estate) that is valued at less than $150,000, then you can use an affidavit to gather all of the personal property.... Read Answer

There are many places that you would look for a will: Safe deposit box The decedent's home  The decedent's estate planning attorney Ask family and friends The probate court clerk If you cannot find the orginal, a copy may be sufficient if there is a valid reason why you cannot find the original.  If you cannot find a will at all, you can initiate a probate action as if there was no will (intestate).... Read Answer

Does this will have to be probated? That is, did your mother die owning real estate, or bank accounts worth more than $100,000? If she did, you will have to probate the will. You need to get an attorney to help with that. The cost is paid out of the estate. Your sister might object to your being named executor. In that case, you will argue that before a judge and he will decide. If the judge decides the will is not valid, either there will be probate or a prior will or there will be an intestate administration where assets are divided according to state law.   If the assets are below the probate level, you can handle the administration via small estate affidavit. I would recommend that, due to acrimony with your sister, you also have an attorney help you with that. You should keep detailed records of costs, money received, and money distributed, because your sister has already indicated she intends to be difficult. ... Read Answer

The first person would be his spouse, then his children, then his grandchildren or great-grandchildren.  The adopted mother is an heir only if there are none of these. The estate is responsible for funeral costs, not any of the heirs.  But from a practical standpoint, the heir would pay for the funeral and then be reimbursed by the estate. If you dad passes, then his heirs are entitled to all of his property.... Read Answer

Where did he die and where is his property?  If he lived in a foreign country, and all of his property is in a foreign country, then you will have to ask an attorney in that country.  However, if your father had property in California, then you can look in the probate court of the county where the property is located.... Read Answer

An attorney would have to review the will, if any, and determine what you would have received of the estate.  Was there a probate action?  If so, you can check with the probate court to see what happened to his property. I often get clients who want something done about specific property that hold sentimental value.  Unfortunately, there isn't much that can be done about getting you a specific item of property if it wasn't specifically given to you in a will.... Read Answer

There is only one way to get appointed as the administrator of the estate, and that is to file a petition for probate with the probate court. However, you may or may not need that proceedure, depending on what type of property and how much it's worth.  You may qualify for this procedure if there is only a $30,000 trailer:  http://www.hcd.ca.gov/codes/registration-titling-mobilehome-transfer-forms/hcd475.2.pdf ... Read Answer

Here is how to handle the car: https://www.dmv.ca.gov/portal/dmv/?1dmy&urile=wcm:path:/dmv_content_en/dmv/pubs/brochures/howto/htvr2   Here is the procedure how to handle the bank account:   http://www.courts.ca.gov/10440.htm   And here is the affidavit form needed:   https://saclaw.org/wp-content/uploads/2015/01/form-affidavit-for-collection-of-personal-property.pdf ... Read Answer