Q: Is probate necessary, and if so, what will happen if probate is not filed?
My husbands uncle recently passed away leaving an estate of approximately $250,000, which is made up of cash, and stocks and bonds. He lived and passed away in the state of California and did not leave a signed will. He has 2 brothers who are is next of kin. The family does not want to spend money on probate. Their reasoning is that the amount of his estate is relatively low (even though is higher than the $150,000 minimum for probate) and, they are saying that the $150,000 minimum is applied per asset in the estate, not to the total value of the estate. If they do not file probate, will there be any consequences?
A: The $150,000 threshold to require a probate proceeding does not apply per asset, it applies to the gross value of all assets in the estate as of the date of death. That is the only procedure to transfer the assets. Contact an attorney for a full consultation.
A: Title to assets without named beneficiaries and in the deceased's sole name do not automatically pass to others. That is why we have probate courts. If there are creditors they can open probate to collect amounts owed to them. If there is no Will the natural heirs should consult with a competent probate attorney.
A:
I agree with the two other answers. If the gross value of all assets is over $150,000 (and you do not get to deduct for things like outstanding debts, loans, mortgages) you only choice is to proceed to probate the estate.
Also, the banks will not speak to anyone unless they are the court appointed representative. (Or a joint account holder or designated beneficiary on the account.)
As to your question, "If Probate is not opened, will there be any consequences?", it sounds like someone is thinking of just "saying" that the estate is under $150,000 to use an affidavit transfer procedures. This could have serious consequences.
Aside from the fact that signing such an affidavit would subject the signor to charges for perjury, and possibly fraud committed against the bank, there is a lot more trouble one could get into.
If probate is opened, by a creditor for example, they could require the recipient of the funds to return the amount received to the estate. The would also claim fraud and conversion and receive an additional award of damages and possibly costs and attorney's fees. (And, both the State and Federal government are potential creditors.) And god forbid that someone finds a lost will later.
In short, proceeding as required by law is best, as it protects everyone involved in the administration of the estate.
You should consult an attorney right away about the best way to proceed. If the estate is exceedingly simple, you might be able to find an attorney who will reduce the statutory fee. If you do not know where to find an attorney, you can try your local, county bar association. Most operate referral services where you receive a consultation with an experienced attorney for a nominal or no fee.
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