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

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

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?

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Attorney answers 5


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 negotiations, and estate planning in Whatcom, Skagit, Snohomish, King and Pierce counties. The response does not constitute specific legal advice, which would require a full inquiry by the attorney into the complete background of the facts and circumstances surrounding this matter; rather, it is intended to be general legal information based on the limited information provided by the inquirer; it This response also does not constitute the establishment of an attorney-client relationship, which can only be established after a conflict of interest evaluation is completed, your case is accepted, and a fee agreement is signed. Johnson Legal Group, PLLC

Edward Warren Goodson

Edward Warren Goodson


I disagree with the statement that probate is always mandatory in California. In fact, formal probate administrations are the exception, not the rule. In a recent survey of 2010 deaths in my county (Contra Costa), fewer than 8% of deaths led to probates.


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 action is to have legal representation in this matter.


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.


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!



Please call me for a free consultation at 925-362-4230. 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.


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.

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