Legal Question in Wills and Trusts in California
execution of will
What steps should be taken in reference to the distribution of a will.If a family member was deceased in12/04,what's the proper procedure for discovering the reading of a will or if a will was established or even the reading of the will? What options are available to someone that does not live in the same state as the deceased family member, but want to ensure proper distribution of the deceased assets?Will an attorney be required or can the necessary paper work be done through the courts without an attorney?How much time must be given to the parties envolved before any properties are distributed?Are all parties supposed to be notified,if so by what means?This is in SanFransico,CA.What documentation must be presented? Is a will public knowledge,if so how do I obtain it? Can I submit any futher questions?
3 Answers from Attorneys
Re: execution of will
Unless the estate is less than $100,000 (or all property was held as community property or in joint tenancy or in the form of accounts with beneficiary designations) a petition for probate needs to be filed in Superior Court. If you are not named as executor of the will, and the executor does not open a probate, you can do so. If there is no will, the court will appoint an executor and the estate will be distributed by the rules of intestate succession.
You should act quickly to determine the status of the estate. A local attorney should be retained to ensure that you are protected.
Re: execution of will
There are a number of considerations here. First of all, a will is not of public record until after someone dies, and the will (if there is one) is filed with the Superior Court in the county in which the decedent died. Even if there is or is not a will, the estate can only be distributed through an action with the Probate Courts (unless the estate is less than $100K).
That process is started with a petition to administer the estate. If there is no will, anyone of interest (family members, creditors, etc.) can petition to adminster the estate. There are filing fees and all potential heirs must be notified of the scheduled hearing.
Once someone is appointed as administrator of the estate, there is a 4 month period in which creditors can file claims. It is a tedious process, and cannot really be handled from out of state. There should be an attorney involved.
Attorney fees for a probate are set by state statute, and are paid from the assets of the estate, not by the administrator. The attorney does not get paid until the process is completed.
Let me know if you have any other questions or need additional help. I am in the SF Bay area, and handle probate cases throughout northern California.
Re: execution of will
A will needs to be filed at the Superior Court where the deceased lived. Anyone can read it there. Unless an estate is below $100,000 or a trust has been established, the estate needs to be probated again where the deceased lived.
It make sure assets are properly distributed, an attorney needs to be retained to review all the steps being done in probate. Filing a special notice request at the court where the will is being probate is also helpful, but again, having an attorney involved is the best way to make sure all is done properly.
If you need an attorney, please do not hesitate to contact me at (408) 268-2580.
Sincerely,
Kai H. Wessels, Esq.
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