Is probate necessary? And need advice for the next steps for an estate.

Asked over 1 year ago - Sunnyvale, CA

My father recently passed away, survived by 4 children and left no will. He was recently divorced from my mother, however, they were still finalizing the division of property. A Qdro was issued by the court to divide my mother's 401K and retirement plans. He has a few assets such as vehicles, and possibly some liquid accounts. He also had some credit card debt, possible medical bills and a car lease.

The most pressing issue is the Qdro. My mother would like the court to vacate the Qdro to contest it since my father still owed her money. The response needs to happen in the next couple of weeks. For that to happen, someone needs to represent my father, however, I am not sure if the estate is really worth going into probate besides the Qdro. What options would we have to move forward

Additional information

Thanks for the responses.

I believe the CA limit for a small estate is $150K. I do not think the estate will be near that amount since any significant amounts of money would be in retirement accounts and would probably still be less than $150K. From what I understand, cars are not included in assessing the value of the estate.

I am not sure if I personally really want to pursue any legal proceedings and no other siblings may be interested. Do we have a legal obligation to do anything regarding responding to the divorce proceedings or the assets?

Attorney answers (5)

  1. Christine James

    Pro

    Contributor Level 19

    3

    Lawyers agree

    Answered . Ask your mother's family law attorney to file a motion with the family court to vacate. Make sure the circumstances of the amounts due your mother and the death of your father are clear. Unless there are survivor benefits to someone after your father's death in the QDRO then the court will likely vacate it. The court may however require that a probate be opened for someone to represent your father's interests but that will be up to the presiding judge and the terms of the QDRO.

  2. Edward Warren Goodson

    Contributor Level 11

    1

    Lawyer agrees

    Answered . Your mother should attempt what she needs to do without a probate of your father's estate. If a probate is really needed, then any one of the four children can hire a probate attorney and open the probate, even if it's under $150,000. If none of you wish to do it, you can nominate a professional fiduciary to do it. Best place to start is to speak with an experienced local probate attorney. Good luck!

    Regards,

    --Ed

    Please call me for a free consultation at 925-362-4230. The information you obtain at this site is not, nor is... more
  3. John Noah Kitta

    Contributor Level 19

    1

    Lawyer agrees

    Answered . There is number of related issues that must be addressed, which includes probate court as well as the family law court. The primary status of the divorce may be determined to a great stand in regard to what is inevitable for the probate. For the court to get involved in the family law, it would need to be the increase of prospective heirs of the ex-wife, and also ascertain the necessity of a probate hearing.

    This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client... more
  4. Matthew Erik Johnson

    Contributor Level 17

    2

    Lawyers agree

    Answered . In California, unless something has changed this year, probate is always mandatory. If the estate was under $100k (that amount may have increased since I left) and there was no real estate,a small estate affidavit is fine.

    Matthew Johnson phone# 206.747.0313 is licensed in the State of Washington and performs bankruptcy, short sale... more
  5. Joseph Franklin Pippen Jr.

    Pro

    Contributor Level 20

    1

    Lawyer agrees

    Answered . I agree with Attorney Johnson-you will need a probate to settle the estate.

    The answer given does not imply that an attorney-client relationship has been established and your best course of... more

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