Q: My sister filed a probate case for our father wiout serving me. Can I file a request for dismissal?

A: Yes, you could have any order granting her petition to be appointed the administrator, if you were not served. The manner of doing so would require a petition to invalidate the court order based upon failure of notice. The entire process of petitioning for probate would probably need to commence a second time, requiring a hearing date, notice. Publication may be required if you or someone else is petitioning for appointment. But, there are some facts about this probate that you have not explained. Was there a will? When you state you have "bills," do you mean that your father had debts? Or, do you mean that you have a creditor's claim against the estate? Also, if the estate is really worth less than $100,000, you do not need a probate. Heirs or beneficiaries can use Probate Code Section 13100 for estates less than $150,000.

Michael

A: You won't be able to have it thrown out, but you can object and/or file a competing petition for probate. If you are owed money from the estate, then you can file a creditor claim. You should also file a request for notice in the probate case.

A: I would agree that you could have your sister removed as the administrator. You may also be able to surcharge her of she has mismanaged estate assets. (Surcharge means to make her pay money back to the other heirs of the estate.)

However, I would point out that just because an estate is worth less than $100,000, it does not mean that a probate is not allowed, just not required.

In this case, there is apparently a parcel of real property (vacant land), and the probate would place one person in charge of liquidating that property if required. However, if you and the other heirs wanted to take joint title to the property (which may or may not be wise, but that is a whole other topic) and the estate is less than $150,000 there is a short form affidavit procedure for that.

I would have a lawyer review the pleadings (court records) and let you know where you stand.

A: I want to add that, yes, the order may be void and set aside due to failure to give notice. The legal authority is as follows:

The order appointing a personal representative is void and may be collaterally attacked at any time, as well as challenged on appeal when there is failure to give constitutionally required notice, unless there has been a general appearance. Prob Code Sections 8007 and 1303.