California Probate Legal Questions

I am sorry for your loss. A spousal property petition would likely work. However, if under $150,000 you could also do a probate code 13100 small estate affidavit. There are free forms on the internet for that. The key for either is that you have to be entitled to the money. That is, if there are no kids it's yours. If there are kids then it's your if it's "community property." If it's considered "separate property" you could have to share it with the kids. If not sure I would encourage you to talk to an attorney before doing a small estate affidavit. If you decide to do a spousal property petition I also would encourage you hiring an attorney as a good probate attorney makes the process much easier. ... Read Answer

Yes, an undated will is valid so a partially dated will is fine too. If there is another will then you would need evidence to prove which is newer. For example, I had an undated holographic will, in a case, and it made reference to some addition to the house. That addition had been made in a certain year so they knew the will was from that year or later. It trumped an earlier dated will. I hope this helps.... Read Answer

Here's a link to my webpage that lays out how a full probate works. Also on that page is a link to the probate timeline. Lastly, on that page is a link to a probate fee/cost calculator. I think you'll find it very helpful for answering your questions.  -John http://www.californiaprobate.info/sacramento-probate-lawyer/ ... Read Answer

Assuming your brother outlasted any surviving clause in mom's will or trust then his share would go to his estate. If he has a will it would be distributed by that and otherwise by the laws of intestacy. However, in either case you really shouldn't make the distributions direct. Unless it's less than $150,000 then you possibly can by use of small estate affidavits. I would definitely talk to your probate attorney about this to make sure it gets done right. Good luck. -John... Read Answer

I am very sorry for your loss. That is really horrible. If there is equity in the house then you should not walk away from it. There are ways to avoid the full probate. One option would be to file a spousal property petition to get the property transferred to you. If the mortgage company still won't talk to you then we could file for letters of special administration. Both of these would be less costly than a full probate; especially if the property is worth a lot of money. I would need to know more details to know what is your best option. For example, did your husband have kids? What do you think the house is worth? How much do you think is owing on the mortgage?  -John... Read Answer

Your mom can not claim an inheritance unless there is a will naming her beneficiary.  Your mom can, however, file for probate if she would like to get the process started. The family is entitled to notice and if you can't find them most likely heir finders will find them. That is, once you file in the probate court heirfinders check the public records and will go about finding the heirs. They will then make a deal with the heirs to connect them to their inheritance. They may contest your mom being the administrator of the estate and they may  not. If the heirs can't be found then, at the end of probate, the money will be turned over to the state. Your mom would be entitled to an administrator's fee if she works as the administrator throughout the probate. That fee is a percentage of the assets. So, for example, if a $200,000 estate your mom would be entitled to $7k. If it's a $1,000,000 estate then mom would be entitled to $23k. Let me know what other questions you have.  -John... Read Answer

The latest document would revoke the first one as to clauses that are identical. So, for example, in the 2006 will if it says the decedent names Bob as executor and the 2012 will names Jim then Jim would be the executor. However, if the 2006 will names Bob and the 2012 will is silent as to executor then I would argue that Bob would be executor even though other terms of the 2006 will may not be valid. In short, it could be a combination of the two documents.  -John... Read Answer

I am very sorry for your loss. In California the level of probate depends on the type and value of assets. If the assets total $150k or more then a full probate is required. If less than $150k there are a couple different options depending on if it's real estate or non-real estate (ie bank accounts and such). I would be happy to give you a more detailed answer if you can let me some details on the assets. Feel free to contact me directly if you prefer to keep it private. -John... Read Answer

Typically probate takes 7 months minimum from the point of filing in court to the point of writing checks. It's often longer.  At the end of that time period the money should be distributed after a court grants an order saying that the money should be distributed. Depending on where you are in the process would determine what needs to happen. That is, if during the 7 months then probably you just need to sit tight a while longer. If after the 7 months I would want to know if the executor has filed to end the probate? If not, I might file to remove them as executor. If after 7 months and the court has ordered the distribution I would want to know why it hasn't been distributed. If it's been a month or two since the final court order I would be concerned. Good luck.... Read Answer

I am sorry for your loss. I do not know the answer to your problem but I would suggest you search for an attorney who specializes in military retirement. If you can't find that then maybe someone who specializes in government retirements/pensions generally. I am sure there are people out there though I don't know any. Search the internet and you will find one I am sure. Do not delay!... Read Answer

A standard will in California requires two witnesses. It's best if they are not related to the person writing the will, not named in the will, and certainly can not be receiving anything in the will.  The only exception to the two witness rule is for a holographic will. If the person writes the will in their own handwriting (and signs and dates it) then they do not need to have witnesses.... Read Answer

A Probate is based on the value of the real estate as of the time of death if you do not wish to sell the property.  If you wish to sell, then it is based on the sale price.  If the value of the property is under $150,000 (as of 30 years' ago) then it's a 'succession of real property' and the fee is much lower. If you do not have money and you are willing to sell the property, a formal Probate can be opened and legal fees will be paid at the end after the property sells. If you wish, we can help with this.... Read Answer

You have a tough situation. It does not make sense to me that the police would say they can't help. The whole point of doing the non-probate transfer forms is to legally transfer title. By complying with those forms you legally transferred ownership of the car to you.  I would encourage you to talk to the police again. You could possibly sue the cousin for the loss but I think your odds of success are low. You have a tough one here. I wish you good luck. -John... Read Answer

The purpose of a Living Trust in California is to avoid Probate.  If your mom left a Trust behind, the assets will need to be distributed as per the directions in the Trust.  This means that the ownership of the asset would change from the decedent to the beneficiaries. Your best option is to take the Trust to an estate planning attorney who can distribute it correctly. An attorney charges a minimal fee and can answer your questions as well. Since your sister is the Trustee--she would be the one to take it to an attorney for distribution.  If she does not want to do this, then you may have to hire your own attorney to force the issue.... Read Answer