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.
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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.
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.
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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.
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