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Do we need to go thru the probate process?

Los Angeles, CA |

My Father just recently passed leaving no will. I have 3 brothers and 1 sister and we all decided to leave the house to one of my brothers since he is the only one that does not own a house and was living with my father at the time of his death. The house has already been paid for. What are the next legal steps?

Attorney Answers 5


  1. If there's a house, probate is most likely required unless its value is less than $150,000--in that case, there are probate forms to file, but it's a simpler process and takes less time than a probate. If its value is over $150,000, then probate is required, along with some assignments or gifts to transfer your interests in the house to your brother. See an attorney experienced in probate to start the process--the consultation should be free, and the attorney can let you know the costs and fees involved.

    In probate, the attorney fees are not paid until the end of the process, when they're approved by the court. The process takes about a year (possibly more with the state's recent cuts to court funding), starting with filing the petition to open probate, then reporting creditors and creditor claims to the court, a list and valuation of the estate's assets, its heirs/beneficiaries, an accounting, and finally the order to close the probate and distribute the house to your brother.

    The attorney should also prepare the paperwork to transfer the house to your brother, after reviewing the various options with you, to see which approach is best in your family's situation.

    This answer is intended, but not promised or guaranteed, to be correct, complete and up-to-date, and is of a general nature rather than specific legal advice. This answer is not intended to be a source of advertising, solicitation or legal advice.


  2. Disclaimer: The materials provided below are informational and should not be relied upon as legal advice.

    I am sorry for your loss. The estate will need to go through probate, unless your father had disposed of his assets through a living trust, or based on the value of the estate it qualifies as a "small estate." To qualify for the small estate exemption, the total estate value may not exceed $150,000, and the Real Property must be valued at $50,000 or less. Assuming your father's estate qualifies as a small estate, you will need to go through this procedure in place of a complete probate. Take a look at the link below for some general information (Please note that the limit was raised from $100,000 to $150,000 effective January 1, 2013, but this pamphlet has not yet been updated). Be sure to consult your own attorney to protect your legal rights.


  3. Yes, to clear title to the house you will have to go through Probate. Those siblings that wish to disclaim their interest in the probate estate may do so once probate has been opened.

    Once claims against the estate have been satisfied, necessary tax returns filed and any taxes paid, you will be in a position to close the estate. Your next step should be for the sibling who has been chosen to act as personal representative to contact an attorney to assist.

    I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for general information only. They are not legal advice. Answers must not be relied upon. Legal advice must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for legal advice. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference


  4. I agree with Christopher. Although I practice in Oregon, not California, for your brother to get clear title to your deceased father house, certain legal steps MUST be done properly. I suggest you read the 3 articles I have posted about probate, keeping in mind that this is Oregon law. But, it is likely the process is very similar in California. However, don't try to do ANYTHING until after you have invested in an initial consultation with a probate attorney in your area. If you do something wrong, it will cost you FAR MORE to correct it, than a consultation will cost. Good luck.


  5. First step is to check the title to the property. If it is already in your brother's name then there's no need to probate the property. If it is still in your Father's name, then you will need to probate the property. For a more full consultation, please call on me.

    Mason & Associates
    8200 Wilshire Blvd. Suite 200
    Beverly Hills, CA 90211
    877-288-6230 O
    323-944-0413 F

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