Recently my aunt passed away unexpectedly and my sister and I are the next of kin. My aunt did have my sister and I as beneficiary on her employment benefit and we have received the payout. However, the insurance has issued another check to The Estate Of my aunt. She did leave her home and was on title as a Single Woman. I need to hand the business of her home and deposit the check that was issued to The Estate. Do I petition the court to be named administrator as well as beneficiary for my sister and I? Can I set up an account to deposit the check? What's the procedure and can I file without an attorney?
Real Estate Attorney
You can open a probate without an attorney. You can us Form DE-111 online. See weblink.
Process will be much easier and quicker if you work with an experienced Probate Attorney to help you.
The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.
From your post, it appears that your aunt died intestate (without a will). I am assuming that your aunt was unmarried and did not have any surviving children, siblings or parents since you state that you and your sister are the next of kin (also known as heirs at law). You are correct that you will need to file a petition in Probate in order to be appointed as the estate's administrator. Among other things, there are requirements that must be met prior to the first hearing on the Petition for publication in a newspaper At an initial hearing, the court will approve the Petition, appoint you as administrator (assuming that their no objections, and issue Letters of Administration. The Letters of Administration will allow you to conduct the business of the estate including the opening of an estate account, selling the real property,
From your post, it appears that your aunt died intestate (without a will). I am assuming that, at the time of her death, your aunt was unmarried and did not have any surviving children, siblings or parents as you have stated that you and your sister are the next of kin.
You are correct that you will need to file a petition in Probate in order to be appointed as the estate's administrator. Among other things, there are additional requirements that must be met prior to the first hearing on the Petition. For example, notices must be published in a newspaper of general circulation in the county. You are also required to serve a Notice of Hearing on all interested parties and to notify all known creditors of your aunt of her passing. The court will ordinarily require that a bond be posted, as well. There are other forms that need to be filed with the court, both at the onset of Probate, and as the process proceeds.
At an initial hearing, if the Petition does not contain defects, the court will approve the Petition, appoint you as administrator (assuming that there are no objections), and issue Letters of Administration. The Letters of Administration will allow you to conduct the business of the estate including the opening of an estate account, selling the real property or personal property, determining the validity debts and settling creditors’ claims etc. However, the filing and approval of the Petition is just the beginning of the Probate process. Distribution of the estate’s property to the beneficiaries does not occur until the final orders of the court.
The Probate process can be complicated and time consuming. Since your aunt’s estate includes real estate, court approval of the property’s sale price may be required.
There are considerable other responsibilities as an estate administrator, as well. For example, the court will assign a Probate Referee who will appraise all non-cash property. You are responsible for providing an accurate inventory to the Probate Referee, as well as for appraising all cash property.
As to your aunt’s insurance policy, life insurance policies or POD (paid on death accounts such as an IRA or bank account) ordinarily have named beneficiaries. These types of assets usually pass to the beneficiaries outside of Probate. Its unclear why the insurance company, in this case, issued the check to “The estate of……”.
Although its permissible to file a Probate petition yourself, I would recommend that you contact an experienced Probate attorney.
You can file probate proceedings by yourself. The practical difficulty of not using an experienced probate attorney is that there is a lot of paperwork that needs to be done, and the court staff will not give you much (if any) help. Most of the counties have "self-help" websites that give you a general idea of what you'll need to do ... for example, file the petition for probate, file the Notice of Hearing, publish the Notice in a local newspaper, etc.
I've helped many people who started the probate themselves and decided that it was worth it to have a professional help them. If you would like my assistance, please let me know.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Car / Auto Accident Lawyer
My colleagues are correct. Also you may need to open an estate account for your aunt. However, the account must be properly titled and a Tax ID number needs to be issued and assigned to this account. You cannot continue using your aunt's social security number. You will also need to inform the IRS of your fiduciary relationship to the estate. You can do so using form 56 from the IRS. You might also want to write the Department of Health Services if your aunt was receiving any kind of government benefits. These things are not terribly hard to do, but they can be time consuming.
Although I have seen courts allow pro-per executors to appear in court, it is not allowed in California. A pro per may file a petition for probate pro-per, but the court appointed executor must have an attorney, or be an attorney.
See J.W. v. Superior Court, 17 Cal. App. 4th 958
Commentators on this issue also have rejected the theory that a nonattorney guardian may act as attorney for the ward. Witkin observes, "The necessity of employment of an attorney by a guardian ad litem who is not himself a lawyer is obvious, . . ." (4 Witkin, Cal. Procedure, supra, Pleading, § 65, p. 103, quoted with approval in Torres v. Friedman, supra, 169 Cal.App.3d 880, 887, original italics.) Brown and Weil advise attorneys seeking to be relieved as counsel to warn the client to hire replacement counsel where the client is a corporation or "a guardian ad litem, executor, conservator or other representative (since they may not represent themselves in pro per unless they are lawyers.)" (Brown & Weil, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1992) Law & Motion, P 9:396; see also L. A. Super. Ct., Law and Discovery Policy Manual, par. 238.)
See Mossanen v. Monfared, 77 Cal. App. 4th 1402
Since the passage of the State Bar Act in 1927, it has been well settled that persons may represent their own interests in legal proceedings but may not " ' "practice law [for another] in this State unless [they are] active member[s] of the state bar." ' " ( J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965 [22 Cal.Rptr.2d 527], quoting Abar v. Rogers (1981) 124 Cal.App.3d 862, 865 [177 Cal.Rptr. 655], and Bus. & Prof. Code, § 6125.) Prohibiting unlicensed practice is within the "police power [of the state] and is designed to assure the competency of those performing [legal] services." ( J.W. v. Superior Court, supra, 17 Cal.App.4th at p. 969.) In line with that prohibition, courts have held, among other examples, that a nonattorney mother cannot represent her minor son in propria persona in a paternity action (ibid.), a juvenile cannot have his nonlawyer father assist in his defense or represent him ( In re Gordon J. (1980) 108 Cal.App.3d 907, 914 [166 Cal.Rptr. 809, 11 A.L.R.4th 711]), and a nonlawyer representing his mother's estate as conservator and executor cannot appear in propria persona on behalf of the estate ( City of Downey v. Johnson (1968) 263 Cal.App.2d 775, 779 [69 Cal.Rptr. 830]).
Estate Planning Attorney
I agree with the previous answers that it would be best to seek the assistance of an experienced probate attorney. If fees are a concern, some attorneys may be willing to negotiate their fees. Unless you have been referred to a probate attorney by someone you trust, I suggest that you check the State Bar of California's website for an attorney who is certified as a specialist in Probate law. Less than 1/2 of 1% of attorneys in California are certified as specialists in Probate law. Here is the link: http://members.calbar.ca.gov/search/ls_search.aspx