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Do we need to go through probate? My Mom passed away in Feb and my stepdad is going to pass any day now. neither left a will

Citrus Heights, CA |

they did not have much in assets ,mostly sentimental stuff. So far we are getting along on who is getting what(.but that could change ). I know that my mom has/had 401k, retirement and life Insurance. but I think she cashed them in before she died ..not sure what he has/had . they have 1 car that got wrecked in an accident ( but paid for )and their house in going into foreclosure, I have no idea what the next step is.. any advise would really be appreciated ... thanks in advance T

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Attorney answers 4

Posted

The purpose of a probate is to transfer title to the heirs or beneficiaries. If there are no assets in which title is an issue - there is no need for a probate proceeding. Generally 401k's and life insurance have designated beneficiaries - the distribution is a matter of contract; no probate is needed. If the house has no equity there is no reason to transfer title. I would make sure that you have access to the bank accounts (have your stepdad sign a bank signature card making you a joint tenant). If that is not possible the provisions of the California Probate law permit a small estate to be transferred by affidavit (Probate Code 13100 et. seq.) The banks have forms for this purpose.

DISCLAIMER: The response herein is not legal advice and does not create an attorney/client relationship or any right of confidentiality between you and the responding attorney. These responses are intended only to provide general information about perceived legal issues within the question. Each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer is not a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction and who is familiar with your specific facts and all of the circumstances.

Asker

Posted

thank you so much for you advice .. with only a certain amount of letters I can enter in on this forum . you understood what I was asking. thanks again T.

Marty Burbank

Marty Burbank

Posted

The maximum that can be transferred under the small estate affidavit statute is $150,000 so you are probably ok. The thing is, if there are assets in those accounts, and the house is in the estate, you could still end up in probate even if there is no equity in the estate and all of the assets, would be subject to probate. Worst of all probate fees are based on the gross value of the estate not the net value. Hopefully you will found out that there are beneficiary designations on the accounts, if not i would try to update the beneficiary designations while your father in law is alive.

Posted

Regardless of your sense that your step-dad will pass away "any day now", the only person whose estate needs to be administered riht now is your mother's, since she's the only deceased person presently. You must first administer your mom's estate and see where her assets were to go on her death. Debts should have been paid first and foremost before anyone got any kind of inheritance. It sounds like you are also not sure whether she did in fact have a 401k and life insurance policy. Can you confirm that? Usually 401ks have a beneficiary designation leaving the asset to the spouse. If the 401k exists, your step-dad may now own it. The life insurance policy may or may not have a beneficiary designation as well, and it need not have been your mother's spouse who was named as beneficiary. If there is no beneficiary designation, it would go to your mother's estate. If neither of these assets exist, then nothng to be done on that count.

Sentimental objects that were just your mother's would be distributed to her heirs at law under the default (intestate succession) rules. You need to provide more in the way of facts for someone to really help you, so I advise that you collect all the information you have and hire an attorney if in fact there is a significant amount of money involved.

From what you wrote saying "so far we are getting along won who is getting what" it seems that you are not the only eventual beneficiary in the picture. For that reason, I would NOT get your step-father to put your name on any property so that you own it jointly with him.. It could create havoc in the family if your step-dad made some deathbed changes to favor you without any one else knowing about it, and could lead to charges of undue influence. In addition, if your step-dad is so close to death as you seem to say, then he may no longer be capable of making lucid financial decisions anyway. However, if your step-dad is still lucid, he may want to make some of the gifts of sentimental objects while he is still alive. If not, then there is nothing you can do about his estate at this point, and the best thing to do is to attend to his needs until he dies. After he passes away, his heirs at law can together decide what needs to happen next in terms of administrating his estate, hopefully with the advice of a qualified attorney.

This material is for general information purposes only and offers incomplete treatment of the topics covered. The writer assumes no legal responsibility for any use or misuse of the information. Consult your attorney for your individual legal needs as the law changes frequently and only an attorney who is abreast of these changes can give you the up-to-date and specialized help that you require and deserve.

Posted

It was interesting to read the very practical advice given by Mr.Tigerman and contrast it to the more cautious advice given by Ms. Del Valle. Both make very good points. It's like if you go to a doctor with a not very suspicious looking new mole, one doctor might want to cut it out and have it biopsied which will cost hundreds of dollars and create a wound and anxiety and another doctor might say don't worry if it doesn't change or get bigger. In certain of these cases both doctors are practicing perfectly good medicine.

A compromise might be to consult a local probate attorney. Some may give you a brief free phone consult.

Aida Milagros Del Valle

Aida Milagros Del Valle

Posted

My response was practical also, Mr. Reed, and cautious based on the fact that the questioner said that "so far we are getting along on who gets what (but that could change)" , which showed that there are other interested parties in the picture, and that there is a potential for disagreement. Since I don't know what the questioner's standing vis-a-vis other family members is (does the stepfather have children of his own, are there other siblings etc.) it seemed important to caution the questioner, from a practical perspective, that putting him or herself on title with the elder could subject him or her to challenge from the other beneficiaries, especially if it's done while the elder is on his deathbed. The rest of my response was factual: giving information about what usually occurs with different assets, and what could be done while the step-dad was alive and competent, or conversely, incapacitated. With all due respect, Mr. Reed, I found your comment unnecessary as it depicted my response as somewhat alarmist and excessive, however shrouded in the analogy. Most people would agree, including me, that if a doctor doesn't think that you have a very suspicious looking mole, it is best to wait and see until things change before there is more invasive intervention. To color the more "cautious" approach of the biopsy (which from your words seems to correspond to my response)--with reference to the expenditure of hundreds of dollars, worry, and the creation of a wound--diminishes, and actually misconstrues my response. In spite of your diplomatic closing, you betrayed your own preferences, and in a manner that was less than kind, or helpful from a substantive perspective.

Aida Milagros Del Valle

Aida Milagros Del Valle

Posted

My response was practical also, Mr. Reed, and cautious based on the fact that the questioner said that "so far we are getting along on who gets what (but that could change)" , which showed that there are other interested parties in the picture, and that there is a potential for disagreement. Since I don't know what the questioner's standing vis-a-vis other family members is (does the stepfather have children of his own, are there other siblings etc.) it seemed important to caution the questioner, from a practical perspective, that putting him or herself on title with the elder could subject him or her to challenge from the other beneficiaries, especially if it's done while the elder is on his deathbed. The rest of my response was factual: giving information about what usually occurs with different assets, and what could be done while the step-dad was alive and competent, or conversely, incapacitated. With all due respect, Mr. Reed, I found your comment unnecessary as it depicted my response as somewhat alarmist and excessive, however shrouded in the analogy. Most people would agree, including me, that if a doctor doesn't think that you have a very suspicious looking mole, it is best to wait and see until things change before there is more invasive intervention. To color the more "cautious" approach of the biopsy (which from your words seems to correspond to my response)--with reference to the expenditure of hundreds of dollars, worry, and the creation of a wound--diminishes, and actually misconstrues my response. In spite of your diplomatic closing, you betrayed your own preferences, and in a manner that was less than kind, or helpful from a substantive perspective.

Jonathan Craig Reed

Jonathan Craig Reed

Posted

I certainly did not mean to offend you Ms. Del Valle, and to the extent that I obviously did, I offer you my sincere apologies. Not did I mean to pick a medical example in which more action was meant to be construed as alarmist. Melanomas, or cancerous moles, cannot be distinguished for sure from benign moles without a biopsy and melanomas have a very high survival rate if removed early and a miserable survival rate if removed late. The downside of the "feel good, don't worry medical advice" is that on very rare occasions that response may cost a patient his or her life. I was searching for a medical analogy in which one option is less treatment or diagnosis and a second option is more and both are considered acceptable medical treatment. Perhaps, a better medical analogy would be the current debate over whether PSA testing of men for prostate cancer does more harm than good. You will find urologists on both sides of this issue and I would not impugn the motives of either side.

Asker

Posted

Thank you for your advice as well .. I understood what you were trying to say. and that's what matters right? :) thanks again T

Aida Milagros Del Valle

Aida Milagros Del Valle

Posted

Thank you for your response, Mr. Reed. Very much appreciated. And I am glad that you, the asker of the question, understood that my intention was to alert you to potential problems given what you expressed. Hope you find a workable solution to what you are facing in the near future.

Asker

Posted

no offense Aida but I was trying to tell Mr Reed that I understood what he was trying to say . to be honest I felt like you did not know what I was talking trying to say, and I felt a lttle offended by your comments .. my Stepfather passed away yesterday morning it was not just a "sense" that he was going to pass away .. I had a limited amount of words I could use to ask the questions, so I wrote what I thought would be the most information

Posted

In California, estates that are valued at more than $150,000 (including only probate assets) generally have to be probated. There are exceptions made if the decedent is survived by a spouse.

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