California Probate Legal Questions

No, I don't see any reason that the nephew should be required to leave, particularly if the contents were gifted to him as well as the home. In these times, any property is apt to suffer loss if unoccupied. In California if he had been living there (particularly if he received his mail there) he counts as a tenant under the law, and is protected by landlord-tenant law, including the Covid-19 extra protections. He does need to allow his aunt into the home to look for documents, if she requests and gives reasonable notice. You use the term "executor". That implies there is a will, which will have to go through probate. During the time probate is happening, the executor is legally responsible for the home. The aunt may just be nervous about having responsibility for something when someone else is living there. The estate is responsible for maintaining the insurance on the home; your nephew is within his rights to require proof of insurance. If he's living there, it seems reasonable to me that he should repay the estate that cost. I would suggest that they jointly seek an hour or so of counsel to reassure both of them. It might be beneficial to have a short agreement written up covering their respective duties and responsibilities. (Most attorneys are doing Zoom meetings in these times, so it's no barrier that the sister lives in Washington State). If the property is in probate, and the aunt has received her letters (authority from the court to act), she can officially distribute the contents of the home to the nephew. Probate Code Section 10520 gives authority for distribution of "household furniture and furnishings, motor vehicles ... and other items of a personal nature to the persons entitled to the property under the decedent's will." Your nephew can then sort, discard, clean, etc., to his heart's content. He would insure the contents under a renter's policy until the house is his. If, in fact, the property is actually in a trust, the aunt can and should immediate deed the property to her nephew.... Read More

First check the probate court records of the county in which your grandmother died to see what the Will actually said.  Ordinarily, a Will is first probate there.  Then the records are sent to any other state or country in which there is real property.  The court records should also show whether this has been done.  You may need a lawyer in that country.... Read More

I can't tell you whether this person is a "real probate lawyer." Any licensed attorney may legally handle a probate. An attorney who focuses on wills and trusts will generally have experience with probate.  $11,000 sounds like a large deposit. Typical deposits are just to cover costs, which are around $1,500-$2,000. The attorney collects the fee for his or her work at the end of probate. The only situation where a large deposit, to cover the entire probate fee, could be appropriate is if there's a house in the probate and you intend to keep the house. In that case, many attorneys request the entire fee up front, to be held in their trust account until the probate is completed. Otherwise, they risk not being paid. If he has filed for probate, gotten a hearing date, and sent out the appropriate notices, he's probably doing his job. If not, you may need to get your money back and switch attorneys. ... Read More

As administrator, you are responsible for dealing with the estate assets. Also, unless your mother just bought the house a year or two ago, you would likely be leaving a lot of money on the table if you let the home go to foreclosure. You or your attorney should contact the mortgage holder, and explain that your mother died. Explain that you plan to sell the home as soon as you're able to evict the inhabitant. Hopefully that would stall off foreclosure. After all, the bank would have the same problem with the occupant. Connect with an attorney who handles evictions. It may be that it's possible to begin the eviction process by giving either a 30-day or 60-day notice (whichever is appropriate) to at least start things. In reality, in most of these situations people buy out the occupant by giving them enough money for first and last month's rent and security deposit at a new place. That agreement would need to be drafted by your attorney, with careful timing on paying the money (e.g., perhaps paying $ directly to a new landlord, rather than to the old boyfriend) so he doesn't take the money and stay there. I've heard of people paying as much as $5,000-$10,000 to get people out.... Read More

Look at the engagement agreement.  Generally speaking, a client can fire an attorney at any time for any reason or for no reason.  Find a new attorney to substitute in and have the file transferred to that attorney.  But do note that while the first attorney cannot withhold the file, no other attorney is likely to take the case if you still owe the first attorney money.... Read More

In most states there is no longer a "reading of the Will."  That practice dates to the time when most people could not read.  Now, if a Will has been submitted to a court for probate (proving), anyone can see it in the county probate court records.  In some counties these are available online.  Please note that no beneficiary should expect to receive a distribution 11 months after the person has died.  Generally more than a year must elapse before a beneficiary can request an accounting.  This is to give the executor time to file the final income tax return (not due until the next year) and at least begin to pay creditors.... Read More

This varies by state.  The administrator must pay the final year's income taxes so may not be able to make a distribution until after that.  In some states an heir can request an accounting so many months (say, 15) after the administrator is appointed and apply to have the administrator removed so many months (say, 24) after the administrator is appointed if there has been no distribution.  Contact a local probate lawyer.... Read More

When someone is appointed executor (or, if there is no Will, administrator) by the local probate court, they will have the authority to redirect the mail and the authority to collect all the property, pay all the debts and distribute the rest according to the Will (or, if there is no Will, the state's laws of inheritance).  While you could try to preserve friendly relations by giving mail and information before the court appointment, be sure that you give these to the right person.  ... Read More

Contact the attorney ad litem appointed by the court in the heirship proceeding with evidence of paternity.  It is the attorney ad litem's job to find all the missing heirs, including your child.  If that attorney does not promptly file an amended report, hire a probate lawyer who practices in that county.... Read More

Different courts are handling appearances differently during the pandemic.  While ordinarily you would be required to physically appear, many are operating by Zoom, etc.  What the court in which you will file will do at the time of hearing can better be predicted by an attorney who regularly practices before that court.... Read More

In most states after a certain amount of time has passed without the estate being distributed (two years after appointment of executor in Texas, for example), a beneficiary who has not received a distribution can file a motion asking the court to replace the executor.  The new executor, perhaps that beneficiary, can make a distribution.  Ask a local probate lawyer whether enough time has passed to do this in your state.... Read More

Step one, settle the estate. Step two, those siblings who want to sell, sell. Combined step one and step two, settle the estate with a Family Settlement Agreement. Alternative Approach Step one, settle the estate. Step two, those siblings who want to sell, sell. Step three, one or another co-owner sues for partition, forcing the sale.      ... Read More