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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

Attorney Answers 4

  1. 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.

  2. 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.

  3. 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.

  4. 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.

    The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Howard Roitman, Esq. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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