Q: Can I file simple probate if there is no property, but a lawsuit will be filed afterward, poss. reaching 150k?
I cannot afford an attorney, so I have to file probate without legal help. The forms read less than or more than 150k. My mother had no house, car, jewelry, etc but passed of Mesothelioma, so there is a lawsuit pending. No one knows the outcome, but I don't want to make a mistake. Which should I file? Thank you!
A: If your mother's estate will be filing the lawsuit, then you must file a petition for probate to be appointed as the personal representative of her estate. If you file a petition for probate to administer her estate, then you cannot use the Probate Code § 13100 procedure to obtain her personal property. It's the estate that pays the attorney's fees; you are not personally liable for the costs of probate.
A: I agree with Mr. Price's answer. A couple of additional things here. Many (but not all) probate attorneys will ask that you cover court costs up front (filing fees and the like). However, if this presents a problem for you, make sure you ask about a "fee waiver" (where the court will waive some or all of the court fees.)
A: Please refer to the information at http://www.sweeneyprobatelaw.com/Articles/Understanding-Wrongful-Death-And-Survival-Actions.shtml
A: You should commence a probate if you are the executor of your mother's will, or if she had no will, the person with priority to be appointed the administrator of her estate. The purpose would be so that the personal injury litigation may proceed with a real party in interest. As the personal representative of your mother, you will be able to retain counsel for her estate, enter into a settlement agreement, or decide to take the matter to trial. Moreover, any recovery in your mother's case would be part of her estate and would then be transferred by the probate proceedings to her beneficiaries if she had a will or to her heirs at law.
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