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
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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