Legal Question in Wills and Trusts in California

wills and probate

My father has recently passed away. My stepmother 'supposedly' was named executer of my father's will. Nobody else in the family has seen the will. She just told us what it says. She says she doesn't want to probate it. What is probate and does a will have to be probated for the distribution of my father's assets? Can she not probate it? I live in one state and my father lived in another, can I probate it in my state? How much does it cost to probate a will? Can't my father's lawyer just send copies of the will to the heirs and be done with it? Can I get a copy of the will from my father's lawyer? I don't know what to do. My stepmother gave me my dad's ring that she said was my dad's wish and my brother got his tools and a grandfather clock she said was his. All that is supposedly left is the two properties that were left to us, and we have been told which belongs to which of us by our stepmother. She says there's nothing else. Don't get me wrong, I don't want more or anything like that; it just doesn't feel right somehow that the will wasn't read to us by the lawyer while we were all there.

Asked on 11/28/97, 3:09 am

6 Answers from Attorneys

Jes Beard Jes Beard, Attorney at Law
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wills and probate

Since I'm not licensed in your state I am only saying what the general rule is in most jurisdictions, but to be certain the applicable law, you still need to speak with an attorney licensed there.Your question was in part whether a Will really had to be probated instead of just allowing the attorney for the estate to read the heirs the Will and then divide things.Well, probate is still needed because the may be creditors who have claims against the estate and those claims are to be paid first if they are valid. The Will is also supposed to be probated to allow all interested parties to look at it themselves, check the signature, see if a Will they might have in their possession from the decedent was written later, and to check to see if they were named in the Will.Anyone who is an heir at law, or named in the will the executor is refusing to probate, can file a Petition with the Probate Court to FORCE the probate of the estate.Your father's lawyer may or may not send you a copy of the Will if you request it.The cost of probate depends on the size of the estate, how much effort has to be done to collect and inventory assets and account for debts, and how much the heirs and creditors fight with each other; my own fees have ranged from a few hundred dollars to in excess of $30,000.To transfer title on real property from a person who has died to an intended heir normally requires court approval, coming in the probate process.You generally probate an estate in the state and the county where the estate (the real property) was located.

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11/28/97, 4:46 pm
Chris Johnson Christopher B. Johnson, Attorney at Law
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Probate usually required

The following is based on California law:

Sometimes probate, or the most formal probate process, is not required for property passing from one spouse to another spouse.

However, assets passing in other instances generally require probate, and that would be the case here, unless the assets are under a certain value, or were held in joint ownership.

For real estate, the probate is generally opened where the real estate is located.

If a probate is required in your case, your father's will must be filed with the probate court, and you would then have access to a copy of it through the court file. Still, you should request a copy of the will from your father's and/or stepmother's attorney--they may send it to you.

Check with an attorney about your options for starting probate if you don't hear more from your stepmother or her attorney soon.

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11/29/97, 3:48 am
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Private probate processes ...

don't smell right. Unless the probate property (all assets, money AND land) total a very small amount, e.g., under $15,000, there almost certainly must be a probate process, particularly to change the title onthe assets. However, it is possible that the titles had already been changed somehow (for example, made joint tenancy property, with her for the $$, and you and your siblings for each property, probably, or else put into a trust which spells out the distributions as she stated).

I'm guessing that there is a trust involved here; ask your father'slawyer why there's been no probate and perhaps offer to hire him (or someone he recommends) to open a probate estate if it should be done. (Don't suggest the trust to him -- let him bring that up.) Property (assets or land) not titled solely in your dad's nameare not considered to be "probate" property since the title (or anaccompanying trust document), not a will, says where it will go.

Probate, in rough terms, is the court process used to certify thata will is not a forgery, was validly and legally made while the testator still had legal (mental) capacity, is the latest one, etc.It is as I said, almost always required; anyone who has a copy of thewill is required to submit it to the probate court (usually within30 days, but noone really cares) and it is not an option for the holderof the will whether or not to do so. If noone wants to probate a will,then a public administrator is appointed; it's not exactly an optionalprocess (unless there are NO probate assets).

MESSAGE CONTINUED ...

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11/30/97, 12:09 am
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Private probate processes ...

CONTINUATION OF MESSAGE:

Your stepmother probably WAS named executrix (female) of the will. It's the norm for a spouse to be so named. It is possible, by theway, that she is trying to spare you some discomforts -- for example,Dad might have had some nasty parting shots and might even have disinherited you or a sibling on purpose, and step-Ma could be correctingthat. Another possibility is that there was a serious kitty of cash --stocks and bonds, more likely -- from which she gets to live on the interest(and even has some slightly-limited access to principle) for her life, andshe doesn't want you kids drooling over the money while she's alive. I supposeanother possibility is that there's a serious kitty and she's ripping you offor intending to invade corpus (principle) excessively or at least without havingto explain herself to you.

You can hire an attorney to open probate either in the state(county) where Dad died and/or the state where the real estate is located; if they're not the same, the real estate's probateis called "ancillary administration" I believe and pertains onlyto that real estate.

If there are no big fights about the will itself, that may cost as little as a few hundred dollars. But probate has another meaning:the executrix or (if she has declined and continues to decline the job) whoever administers the estate must do an inventory, must trackall income, every expense paid, might have to file federal and state estate tax returns, might have to manage the property (i.e., collectrents, make sure the property meets legal requirements -- for stocksand bonds, make sure that they're not foolishly invested, especiallyto be certain that not all eggs in one --or two few baskets). It can be seriously onerous and therefore expensive, often going into the tens of thousands for a typical million dollarestate.

Ask your father's lawyer to send you a copy of the will. Youprobably have a legal right to it and he has an obligation to supply it to the court if not to you. But no, that doesn't mean you-all can then privately administer the property amongst yourselves.

I can think of one other reason why she'd wish to avoid probate:expense of the final illness, often in the tens of thousands, may cut into the inheritence and she may figure that not opening theprobate estate will sufficiently frustrate the creditors to get them to drop their claim(s). She could be trying to do good for you. Butthat tactic is good only for a few hundred dollars, I belived=.

Clear??

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11/30/97, 12:10 am
Robert Friend Robert H. Friend, Attorney at Law
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Probate by Stepmother

In my state (NC) probate is a public process that occurs at the clerk's office of the courthouse. Go to your courthouse and ask them if a will must be probated. I would guess that the answer is "yes". You should ask for a copy of the will from your stepmother. If you don't get it in a couple of days hire a lawyer in the location/state where your father died. No, I doubt that you could probate it in your state; you couldn't if he had died in NC, anyway.

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12/02/97, 10:19 am
Alan Pransky Law Office of Alan J. Pransky
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Probation of wills

Probate is a court supervised process of collection of assets of adeceased, collection ofdebts, payment of debts, and distribution of remaining assets to heirs orbeneficiaries. Inmost states, only separately owned property is subject to probate. If allassets were ownedjointly, then it is possible that there are no assets subject to a probateproceeding. A will mustbe probated at the domicile of the deceased. Therefore, you cannotprobate in your state.You may file a probate in your father's state even if your stepmotherrefuses. Once you file aprobate you will be entitled to a copy of the will and information aboutassets that are subjectto the court's powers.

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1/17/98, 11:47 pm

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