Q: My husband& brother in law parents died with trust and no overflow will for extra property. Who can start probate
Brother in law son is trustee of trust. Parents home not in trust. Brother ln law dragging feet to get probate started. Can hubby do it without him.
A: Yes, anyone can start the probate action. There is a priority to who would have first opportunity to be the administrator of the estate: the surviving spouse, and then the children, grandchildren, great grandchildren... Each child has an equal priority of being named as administrator of the estate.
Bruce Adrian Last agrees with this answer
A:
I agree with Mr. Price's answer, but even though there is no "overflow" will (more commonly called a "pour over" will, a probate may not be required. If the property is listed on the trust's schedule of assets, or if the trust generally identifies all of the parents' real property as a trust asset, a Heggstad petition may provide a cheaper alternative to a probate. (Last summer, the California Courts significantly broadened how Heggstad petitions may be used.)
Provided your husband has some interest in the trust (as a beneficiary, co-trustee, or successor trustee), he can bring the Heggstad or get a court to order the trustee to initiate the procedure.
As I tell anyone who is concerned about a trustee's actions or inaction, consulting an attorney about your rights and responsibilities is the best thing to do. That attorney can also confirm whether or not a Heggstad or Probate is the best vehicle.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
