California Probate Legal Questions

A will must be probated in the count where you were domiciled when you die.  Voting in a county would not mean that you are domiciled there.  Your will would have to be probated under the laws of the country where you reside.  If you think that this is an issue, then you should have a trust that wouldn't go through probate.... Read More

The power of attorney terminated at the passing of your friend.  I'm uncertain of how the title was held to this investment account?  You should show a statement to an attorney to verify.  If it was held as joint tenants with right of survivorship, then you own the account.  If you are a trustee of the account, then you must distribute the investment account according to the terms of the trust.... Read More

The power of attorney terminates upon the death of the principal.  If the money belonged to the principal, then it must pass under the principal's estate through a trust or probate.  However, if the account had a named beneficiary or if the account was held in joint tenancy with right of survivorship, then it may not pass under the principal's estate.  Call or email an attorney for a full consultation.... Read More

There are two ways for you to make a will: 1. You can draft a will on your computer.  When the will is typewritten, you will sign it and it must be witnessed and signed by two witnesses. 2. You can handwrite your will in your own handwriting and sign it. Wills are not required to be notorized. Note that a will does not avoid probate.  If your assets are more than $150,000 in value, you may want to use other estate planning methods to avoid the time and expense of probate.... Read More

It really depends. The rules of intestate succession (that is, a person dying without a will) depend on if the property is characterized as "community property" or "separate property."  The fact that it was purchased during marriage leans toward it being CP but what money was used? For example, if money from an inheritance or money from before marriage, were used, then the property could be SP.  Also, many times properties have a mixed characterization; that is, partially SP (maybe the down payment money) and partially CP (the mortgage payments being made from the husband and wife's paychecks).  If it is deemed to be SP then it would be 1/3 to spouse and 2/3 to kids. If CP then it's all to spouse.  The numbers change to 1/2 and 1/2, rather than 1/3 and 2/3, when there is only one child. I hope this helps. -John... Read More

No, you cannot co-mingle your funds with funds of the estate, no matter the amount.  So please do not deposit the $88 in your own personal account. If you are the beneficiary of life insurance proceeds, then those are your funds and you can deposit that money in your account. You are not personally repsonsible for the debts of the decedent.... Read More

You can check with the probate court in the county where you believe that the will was filed.  It should be filed with the probate court in the county where he resided at the time of his death.  If it's not there, check in a safe deposit box or anywhere else important documents may be located such as a home safe or filing cabinet.... Read More

You can disclaim your interest in your mother's estate, but then you would be treated as having predeceased your mother and then your share would pass under the provisions of the will.  You would not have a say in who got your share. Alternatively, you could take your share of the inheritance and then gift it to whomever you like.  You may have to file a gift tax return, but you probably won't owe a gift tax.... Read More

Probate Code sections 13100 – 13115 provide for a summary procedure to transfer the personal property of a decedent without going through a probate action if the decedent’s estate is valued at less than $150,000 and at least forty (40) days have elapsed since the death of the decedent.  The heir(s) is/are required to fill out and sign, in front of a notary public, an affidavit that conforms to California law.  Then, the heir(s) must attach a certified copy of the death certificate to the affidavit. The affidavit and certified copy of the death certificate can be presented to a bank, financial institution, self-storage facility, or similar holder of the decedent’s property.  Sometimes, a bank or financial institution will require that the claimant make the claim on their own forms or they may require that the claimant have the key to a safe deposit box.  Any holder of property must relinquish the property to the claimant when presented with the affidavit and the certified copy of the death certificate.  If they don’t, then the claimant can give notice to the holder of the property and then file a court action with the probate court to order that the property be released.  The claimant may be entitled to attorney’s fees if the holder of the property wrongly withheld the property from the claimant.... Read More

A writ of possession is a document issued by a court, usually in an unlawful detainer proceeding, awarding possession of a property to a part to the unlawful detainer action.  Even if you were previously awarded a writ of poossession, since the owner of the property has passed away, then you may or may not currently be entitled to possession of the premises.  You will need to defend your right to posession of the premises.... Read More

Probate Code sections 13100 – 13115 provide for a summary procedure to transfer the personal property of a decedent without going through a probate action if the decedent’s estate is valued at less than $150,000 and at least forty days have elapsed since the death of the decedent.  The heir(s) is/are required to fill out and sign, in front of a notary public, an affidavit that conforms to California law.  Then, the heir(s) must attach a certified copy of the death certificate to the affidavit. The affidavit and certified copy of the death certificate can be presented to a bank, financial institution, self-storage facility, or similar holder of the decedent’s property.  Sometimes, a bank or financial institution will require that the claimant make the claim on their own forms or they may require that the claimant have the key to a safe deposit box. Any holder of property must relinquish the property to the claimant when presented with the affidavit and the certified copy of the death certificate.  If they don’t, then the claimant can give notice to the holder of the property and then file a court action with the probate court to order that the property be released.  The claimant may be entitled to attorney’s fees if the holder of the property wrongly withheld the property from the claimant.... Read More

You'll have to first transfer the assets from your grandfather's estate to your mother's estate.  Then you can transfer the assets from your mother's estate to you.  Probate is procedural and you'll have to follow all of the steps and see what qualifies to be passed under the small probate estate statute.... Read More

I'm sorry, but your plan of the executor signing a deed won't be valid.  A probate action will be required.  If you are the beneficiary under the will, then you can file a probate action and request that you be appointed the administrator of the estate since the executor refuses to act.  The entire process of a probate action pretty much takes about six to twelve months if there are no glitches.  Once you own the home, yes, you can move in.  Email or call an attorney to help you with the probate action; it's all proceedural and you won't have to do too much.... Read More

What happens to the property if your husband dies first will depend on a few of things. First, whether or not the house is community property, quasi-community property, or separate property.  You will get all of the community or quasi-community property and a 1/3 portion portion of the separate property, if your husband does not have a will. Second, whether or not your husband has a will that directs the disposition of his separate property.  Your husband's will can direct the dispostion of his separate property. Third, the vesting under which you and your husband hold title to the property.  If you hold title as joint tenants or as husband and wife as community property, then the surivior should recieve the property.  If you hold title as tenants in common, then you do not have the automatic right of surivorship. The best thing to do is stop guessing at what will happen and talk to an attorney about estate planning.  A standard estate plan can be completed for $1,500.  That's way cheaper then going through the time and expense of probate.... Read More