Probate or Not

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  #1  
Old 07-21-06, 08:03 PM
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Probate or Not

Good evening, My father passed away a few weeks back and I have had the task of taking care of all of his possessions. The first issue is that he was paying a neighbor woman to cook and clean for him. One day he had the bright idea to put her on his checking account (something that I was not aware of until now) so she could pay his bills for him also. Now the neighbor says she wants her name removed from the account and says she would meet me at his bank to do so. She has since said she wants a copy of his death certificate, me thinks so she can obtain the 26K in his savings account. I will not give her a copy. Is this a time for a lawyer? Also he owned a home and a few vehicles, could these be disposed of without going through probate? Some have said yes if no one were to contest doing so and others say it HAS to go through probate. I am in the state of California. I don't expect legal advise but would like opinions form anyone that has experienced this issue and maybe what pitfalls I should watch for. Thanks
 
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  #2  
Old 07-22-06, 01:27 PM
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I seem to remember that CA has a pretty easy probate process, we did it without attorney when my brother died and also when my Mom died.

DO NOT GIVE THE NEIGHBOR a copy of the death certificate. I'm not sure that what she's planning but it could be. I'm not sure that putting her on the account as a signatory gives her any rights to the account, although if it does in her mind it may get a bit sticky.

You will have to go to probate court and ask the judge to allow you to serve without bond. Take a list of ALL ASSETS and all LIABILITIES that you are aware of. Also need a list of all heirs, you and your siblings etc.

I think you'll need to get "testamentary letters" from the court to allow you to sell the house and cars. The other personal effects (that don't have deeds or titles) can just be done on casual sales.

Once all assets and liabilities have been accounted for (liabilities paid) the balance is the "estate". I think you will have to file an "estate" tax return, anything left is distributed to the heirs. Once all distributions have been done the probate judge will "close" the estate.

Sorry for your losss and good luck.

frank
 
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Old 07-22-06, 01:37 PM
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Frank gave a very good description of what you need to do. The only thing I see as a problem is in what manner the cook was put on the checking account. Depending upon how the account was held, the cook may actually have legal rights to the account while the estate has none.

You need to check into that in a major way.
 
  #4  
Old 07-22-06, 03:21 PM
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Without a doubt --- hire an attorney. The laws vary by state. Probate is probably a must, you must adhere to the regulations set by the state or you could create problems that will far exceed the cost of a good probate lawyer.

Find out if your father had a will ( this will affect everything ).

It probably doesnt matter if you give ( i wouldn't ) a copy of the death cert., b/c ( depending on ca law ) the death cert. is filed in the county he lived & is available to anyone . Retain an atty.

Find out if he had life insurance, and if so find out what company, agent, or agency wrote the policy. They may have someone available to assist you with the probate process. Also if you have purchased life ins. talk to your agency & find out if there is someone that could assist you.

It may be a good idea to open an estate account , close the checking, and move all funds into the estate account (ask an atty. ). This will remove the possibility of loss from the cleaning lady. Find out now. Move quick. You may be able to notify the bank & freeze the account. Talk to an atty. now !!!!!

Depending on CA law there may be for instance an opportunity for creditors to file claims against your fathers estate. If she has legal right to the money some how she would be able to present her case at that time. You don't want her to take the money in the mean time, and you have to fight to get it back. You want her to fight to get it.

I'm familiar with my states law from personal & professional experience, no others. ANYONE that reads this should ALWAYS seek help from a professional that is familiar with the laws and processes specifically in their state !!!!!! PERIOD !!!!!

I'm likewise sorry for your loss, be careful as you are responsible for everything until you hire an atty. to represent your fathers estate on your behalf.

Good Luck
 
  #5  
Old 08-11-06, 06:56 PM
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Probate

Thanks for the advise. We have contacted a lawyer and are getting ready to start the probate. We have since found a hand written "will" that my mother had written 6 months prior to her passing. The lawyer says that her wishes have no bearing since everything passed to my father. But we have a couple of lawyers that are customers of our plumbing business that said her will should be taken into consideration for her 50% of the real estate since her name is still on the deed. Does this make any sense? We have found that the neighbor only has access to the checking account which has less than 2K and she has no access to the savings accounts so there should be no problem.
Thanks again for the information.
 
  #6  
Old 08-11-06, 07:26 PM
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Depending upon the state involved, there are different requirements for a holographic will to be considered as a legitimate will.

Also, depending upon how the title was held on the real estate, the surviving spouse may automatically recieve the total ownership of the real estate regardless what any will would state.

In one type of ownership, the surviving spouse recieves the real estate without it actually passing through probate. In others, a will would control the transfer of the real estate.
 
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