My friend's husband passed away without a will. She left with a house in a range of $1.2M market price (owned as joint tenancy with her deceased husband), few joint bank accounts and few retirements accounts. They were married for about 25 years and all assets owned are common property. They have 1 son (minor) and no previous marriages, no brothers, sisters, etc. My friend's lawyer said that her house should go to probate and even joint bank accounts also are subjects to probate. From what I saw on the internet, it looks like neither house, no joint accounts should be probateable. Could you please help to clear the issue, if the house and/or joint bank accounts are probateable in California.
Property that passes by operation of law is not controlled by a will or the laws of intestate succession where there is no will. So joint tenancies, and retirement accounts, life insurance and annuties that are all controlled by the beneficiary named pass automatically to the joint tenant or the named beneficiary and are not subject to probate. All other assets that do not pass by operation of law pass under the laws of intestate succession under the laws of the state of where the decedent last resided. Since this is a CA estate, community property rules also may have an impact. You should be a true friend and get her to a good estates attorney. Two that regularly contribute to Avvo that you should check out would be Ms. Brewer and Miss Elizabeth Johnson.
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Estate Planning Attorney
Your friend needs a new lawyer.
I cannot imagine that a lawyer with even minimal competency would say that there needs to be a probate in this situation.
The only remotely plausible reason for a probate might be to have a judge rule that the real estate is "community property" rather than "joint tenancy" so that your friend could have some better income tax benefits ... and that can be accomplished with a "spousal property petition", which should cost a fraction of what a probate would cost (for example, $1.2MM house would result in a probate fee to the lawyer of approximately $25,000 while a spousal property petition should cost more like $2500 - or less).
My office is in Palo Alto. If your friend needs assistance, I would be happy to help.
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