Legal Question in Elder Law in California
Understanding probate
If parents have a will and die and the only child a son moves into their home, probate process does not start unless property is sold maybe 10 years later. Is this correct? Also if savings accounts have son as beneficiary all son needs to do to get monies is to produces an affidavid of death of both parents for bank , also this does not start the probate process? If parents have creditors at the time of their death probate process does not start if son pays creditor? If not paid creditors could start the probate process?
2 Answers from Attorneys
Re: Understanding probate
At some point probate has to be done to transfer title on home. It is supposed to be done promptly. Unless the account is joint tenancy, it is unlikely banks will turn over funds without probate order.
Sounds like someone needs good legal counsel, advice and representation to avoid some serious problems later. Contact me if interested.
Re: Understanding probate
The probate process is started when a petition is filed to probate a will or to probate an estate when there is no will. It should be done shortly after death; I'm not aware of any time limitation of waiting.
When the property is held solely in the name of the decedent (the dead person), the only way to transfer it to the heirs is via a probate. You should do this sooner rather than waiting 10 years because statutory fees and costs are levied on the value of the estate; if you wait 10 years to transfer the house the fees will increase.
Any asset accounts with beneficiary status are not part of the probate estate (unless the person designates his or her estate as the beneficiary).
The son should probably not pay his parents creditors. The creditors are paid through the probate from the parents' assets.
See an attorney for more details.
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