California Probate Legal Questions

It's hard to answer directly as you have a lot of directions you could go here. In general an original will is NOT required. A photo copy of a signed will can be filed for probate as a petition to admit a "lost will" to probate.  Additionally, even documents that do not meet all the legal requirements of a will can be admitted to probate in some cases.  As for the will itself there is no central state office, that I am aware of, where you would send a will to.  Normally the original will is "lodged" in the probate court of the county of death. There are lots of unknowns here. I would hire a probate attorney. -John... Read Answer

There are a couple of ways you could handle that. You could do a distribution agreement with the other daughter. That would show exactly who is getting what and that there are no other claims by her. The court would then approve it. Another option is to ask the court for instructions but I would only do that if the other daughter won't sign a distribution agreement. I would work with your probate attorney on this as there are some technical pitfalls here. -John... Read Answer

I am sorry for your loss.  When your friend died your POA died with them. That is, that document has no legal authority. Her $2,000 should go to her next of kin if she had no will.  California probate code section 6400 and beyond has the rules for who should get it. Since it is under $150,000 the summary rules of California Probate Code 13100 apply so it should be relatively simple to get the money disbursed to the right person or people. Good luck. -John... Read Answer

Unless there was something in writing about the house, after divorce, the divorce likely caused a severance in the joint tenancy. See California probate code 5601.  If the will was written after divorce it may rebut this severance but it's a potential problem.  This means your ex-husband's half of the property may technically go to his next of kin. You should look into this to make sure you have good title as this could become a problem later on for you or your loved ones after you die.  To clarify, his will, if done during marriage is invalid as to gifts to you. That's why I indicate the issue of when the will is written is really a big deal. You have a bit of a loaded case I believe. I encourage you to find an experienced probate attorney to walk through the case with. Good luck. -John... Read Answer

I am sorry for your loss.  Technically you should "lodge" the will in the court. Take a certified death certificate and $50 which is the fee to lodge the will. If everything is joint with "survivorship" then you do not have to do any probate forms. You will want to, eventually, take his name off the assets.  You might want to get a living trust also so that your loved ones do not deal with probate at your death. ... Read Answer

It seems to me there are at least two possibilities. 1) he wants to name you in his will or trust (to give you money) or make you an executor or trustee and his attorney suggested he get your addresses. It's not required but I have seen it done like that. or 2) he is mad at you and is going to sue you. Thus he needs your address to serve the papers. Of the two options I would say the first is more likely but crazier things have happened! Good luck. -John... Read Answer

One year (after death) is the general statue of limitations for when a claim can be filed. However, if you have actual knowledge of the claim then arguably they could come after you for fraud after one year. Not likely. I would probably  hold the money 18-24 months after death. By then you should know how far the collection agency will take it. The problem is every 6-12 months these debts get sold to a new collection agency which often starts the collection process all over again! Good luck. -John... Read Answer

If your mom is on title the legal presumption is that she owns the property.  That being said you appear to be in a reasonable negotiating position with her given the fact that she has no ability to pay the mortgage and she wants you to continue to pay it.  Perhaps you can negotiate an agreement with her whereby you will agree to continue to pay the mortgage and she will add you to title. You also may very well have a claim that you should be entitled to reimbursement for the amounts you have paid on the mortgage over the last ten years, although your claim would likely be offset by the value you received from being able to live at the property. How is title to the property held? Jon... Read Answer

A will always needs to be administered through a probate.  If you want to avoid probate and set up specific instructions for how your daughter will receive everything, you'll want to set up a Living Trust.  This is a complicated process and I recommend a lawyer's assistance to make sure it is done correctly.   A Living Trust will allow you to specify when and how she will receive your assets.  For example, if you were to die before she turned 18, absent instructions in a Trust, she would receive everything when she turned 18.  Most 18 year-olds are unable to handle that.  Conversely, you can set up instructions in your Trust that the money will be used for college, etc. and then distributed in increments at ages 25, 30, 35.  In other words, you have better control.... Read Answer

It really depends. Wills are not required to be notarized; in fact, they should not be notarized. Wills should have two witnesses. Or they should be in the handwriting of the decedent.  Also, we have had success getting improperly witnessed wills admitted to probate. The key is working with an experienced probate attorney and getting started ASAP! Do not delay! ... Read Answer

A lot depends on what the deed says.  Is the real property held "as joint tenants" or "in joint tenancy?"  Or even "as community property!?"  If it says those words on the deed then the property is certainly your moms. If those words are not there then how the will is written could change things.  I would encourage you to talk to an experienced property attorney to review the deed and the will.  Good luck. -John ... Read Answer

In my experience, those who believe they are "simplifying" their estate plan often make it very difficult for the very people who are intended to receive the estate.  The "convoluted" living trust provides for all types of possible contingencies that your notarized statement won't cover.... Read Answer

Typically you publish an ad in an acceptable newspaper of general circulation for the city where the decedent resided which links to a probate court file. The procedure is slightly different if in a probate or a trust administration. You also should send notice of death to known or potential creditors. The notification of creditors is to protect you so that the creditors do not come after you at a later date for the money.... Read Answer

You can probably access all the funds by using small estate affidavits. If you search the web you can find free forms for it. You might have all your siblings assign their interests to you. By doing that you can do the paperwork in your name and then share.  The 401k may be different as some 401k plans pay in certain ways. Most likely divided between all of you. They would then ask for all of your information and then divide the small 401k among all of you. You should be able to accomplish this without opening a formal probate and without hiring an attorney. However, if you need help just hire an experienced probate attorney who can help guide you. Best of luck.  -John... Read Answer