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What Is the Statute of Limitations for an estate Probate?

Pacifica, CA |

The girlfrend of my exhusband, of which I was divorced from in 1988 and since then died in 1992, wants to proceed with the estate probate now. How many years is it too late to apply for the probate?

She said she wants to make her will out for her children and can't until the estate is cleared.

She also wants my 3 children to sign a waiver so she does not have to pay the $2,000.00 for a Surety Bond.

Thank you

Attorney Answers 3


California does not have a statute of limitations on probating an estate. I would NOT recommend that your children waive the surety bond. In fact, I would recommend that one of your children apply to probate the estate - unless your husband had a will that names his girlfriend as his executor, your children have "priority" under the law to be in charge of his probate. The only requirement is that the person in charge must be at least 18 years old.

If your children want to be in charge of the probate and they need assistance, please have them contact my office in Palo Alto.

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.

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I can't quite tell if there is, in fact, a will or whether the proposal is to probate an intestate estate. If here is a will, Ms. Brewer is substantially correct. If not, your childern have a priority in terms of the right to act as administrator. The fact that the girlfriend knows the amount of the proposed surety bond leads me to believe that the petilton for probate has already been filed. The fact that she needs a waiver from your children also means that your children are beneficiaries. I agree that your children should not waive any bond. If there is a will that desigates the girl friend as executor, all you can do is keep an eye on the proceedings. Your childern should file a "Request for Special Notice" in the estate proceedings so that the executor will have to give notice of all actions taken in the estate.

Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since 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 does not create an attorney-client relationship

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A creditor has until four months from the date letters were first issued to the personal representative or 60 days from the date this notice was given, whichever comes later, to make a claim against the estate. In other words, do not delay filing a probate. By serving the Notice of Probate, the executor has shortened the already short statute of limitations on claims against a deceased debtor. The outside limitation on claims against a decedent is one year (Code of Civ. Proc. §366.2), but the notice shortens that time even further. Because a decedent’s personal representative may not pay claims barred by the statute of limitations (Prob. Code §9253), the creditor who makes a late claim will not be paid.

That being said, a probate may still be filed on the estate because no statute of limitations exists.

However, she can make out a Will whether or not the estate in question has yet been probated -- except the executor of that Will will have to deal with the probate of both estates.

If the estate is being probated, it will be scrutinized by the Court. If your children are not afraid of her misappropriating the money from that estate, they can sign such a waiver. In fact, many Wills provide that bond is waived.

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.

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