Legal Question in Wills and Trusts in California
Time limit on starting probate?
My brother & I were left my Mother's house. He is living in the house even though I don't think that's right. I've told him I WANT to hire a lawyer to handle the probate but he is against that. He wants his friends with legal knowledge to walk him through it to save money. (NOT!) Its been SIX months since my Mother passed away & he has done nothing to my knowledge? He recently told me he gave a retainer to a lawyer friend of his. (That was WITHOUT my permission!) I told him he BETTER NOT file or do anything without us both agreeing on whom handles this.
I'm fed up. I just did NOT want fighting between us. He's the only family I have left. But we are at a standoff. I just can't afford to let this drag on any longer. If he really did give another lawyer friend of his a retainer without my permission can I stop this? And HOW long can one take to get probate going? Do we have forever as he seems to think?
3 Answers from Attorneys
Re: Time limit on starting probate?
You should retainer a lawyer to handle the probate and apply for letters of administration yourself. It is not proper for a lawyer to accept a retainer for fees in probate. He cannot be paid but with court approval.
Your brother is stringing you along and enjoying free rent. Meanwhile the taxes will have to be paid and upkeep maintained. Don't wait any longer.
Re: Time limit on starting probate?
The big issues relating to this are that he is using the estate property for his own benefit to your exclusion, i.e., the house. That is not the way that we generally like people handling estates to act. They are supposed to marshal the assets of the estate for distribution to the proper heir(s).
If you want the house transferred or refinanced at any time you will need to go through the probate process in order to transfer title (assuming that the house was in your mother's name upon her death).
If there is no will or trust, YOU can initiate probate proceedings. The attorney's fees are based on a statutory fixed amount and paid at the end of probate.
At this point I would contact an attorney relatively close to where your mother resided to discuss your options. You should obtain several certified death certificates from the County where she died in order to begin probate.
Let me know if you would like to discuss this.
Caleb
Re: Time limit on starting probate?
Contact an attorney right away. Open probate yourself.
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