La Habra, CA asked in Probate for California

Q: What should I do in CA if the executor has not filed probate within the 30 days required and has exceeded 3 months.

My mom is in the will and gets half of the sale of the home. She is pushing her brother to file probate and so far nothing has been done.

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3 Lawyer Answers
John B. Palley
John B. Palley
Answered
  • Probate Lawyer
  • Roseville, CA
  • Licensed in California

A: You can file for probate to get the ball rolling. Most likely the brother with the will would get off the dime and file once he is notified of the petition. You should hire an experienced probate attorney as there are many nuances in a case like this. Good luck. -John

Sheri Lynn Hoffman agrees with this answer

David L. Crockett
David L. Crockett
PREMIUM
Answered
  • Probate Lawyer
  • Newport Beach, CA
  • Licensed in California

A: It is not unusual for executors to not be prompt in getting their act together to file. However, I don't blame your mom to want to get on with it. Since your mom is in the will, meaning she is an heir/beneficiary, she has a legal right to file a petition for probate in the county where the person making the will (the decedent) died. If she files, then her brother will also be forced to file a petition for probate or he will lose is preference to be appointed. It is not uncommon for there being competing petitions for probate in the same estate and then the Judge will sort it out and decided who is the one to become the executor.

I would recommend that your mom send one demand letter to her brother and keep a copy of the letter. The demand letter should point out the facts: name of decedent, date of death, the named executor, maybe the named alternate executor, and state that if he doesn't file a petition for probate in 10 days and notify of it in writing then she is going to file instead as an "interested party". If your mom has an attorney, then maybe have her attorney write it for more impact.

It is also a legitimate concern to get a probate going so assets don't disappear. The longer the delays, the more likely assets will disappear and/or money gets improperly spent. Good luck on this.

David L. Crockett, attorney/CPA/broker/Martindale Hubble AV preeminent rating.

Bruce Adrian Last
Bruce Adrian Last
Answered
  • Probate Lawyer
  • Pleasant Hill, CA
  • Licensed in California

A: I agree with Mr. Palley.

Also, the court may not take kindly to the brother delaying the matter, and failing to lodge the will within the required time period. (There is no "deadline" by which Probate needs to be opened, but there is a deadline to lodge the will with the court.) This means that your Mother may be able to become the personal representative. (A catch all term for executors/administrators.)

I also agree you should consult with an attorney. Just to let you know, attorneys for the personal representative do not get paid until the court approves the payment. We can ask for the client to advance costs (generally, the initial deposit covers the filing of the petition and publication of notice, which runs about $600 - $750 depending on the cost for publication.)

If you do not know where to find an attorney, try your local county bar association's attorney referral service. Most local county bars offer a referral service that matches you with an attorney who provides an initial consultation for a small or no fee.

Good luck.

Sheri Lynn Hoffman agrees with this answer

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