Asked in Estate Planning and Probate for California

Q: Once someone dies who starts the process of the will?

My single Dad passed away in June leaving 3 offspring in our 50's. My brother moved in with Dad several years ago due to no home

For last 3 years Dad needed care provided primarily by brother. Sister/me assisted 2 days/wk. After Dad died, bro claims Dad left all to him, discontinued contact & refuses to show us the will. He dispersed a few items with low value but insists propety & all assets are his. How does the process work and where would a copy of the will be filed? Where could I locate a copy of the title for his home and property to see if he added my brother. Where do I start the search? What are my legal rights? My brother is living on the property.

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3 Lawyer Answers
Shawna Murray
Shawna Murray
Answered
  • Estate Planning Lawyer
  • Irvine, CA
  • Licensed in California

A: I am sorry for your loss. If there was a will, it should have been lodged with the court in the county where your father resided. The law says it must be lodged within 30 days after the death. If it was lodged, you can then view at the court. Of course, there might not be a will and perhaps your father died intestate.

The deed for the house can be found at the county recorder’s office. It is also public record. If you know someone in the real estate industry, you could ask them to look it up. That would be the quickest way to see the deed. If the property is only in your father’s name, then a probate might have been opened by your brother. If not you could hire an attorney to help you petition for a probate.

Bottom line, I recommend that you contact a local probate attorney to discuss what your rights might be. Probate attorneys generally offer free consultations.

Gerald Barry Dorfman agrees with this answer

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney
PREMIUM
Answered
  • Estate Planning Lawyer
  • Carlsbad, CA
  • Licensed in California

A: The custodian of the Will is required by law to "lodge" it with the Probate Court and start the process. The court appoints an Admiistrator and then supervises the distribution of the assets. It is kind of a long, annoying process which is why we use Trusts to avoid it.

If the estater is worth less than $165,000 and has no real estate worth more than $20,000 then you can use the Simplified Probate which is much easier.

But none of the real estate or bank/brokerage accounts can be moved without some Probate paperwork.

John B. Palley
John B. Palley
Answered
  • Estate Planning Lawyer
  • Roseville, CA
  • Licensed in California

A: I would start by looking up the deed to the house. Shoot me an email with the address and your dad's name and I can look it up for you in about 30 seconds.

If it's in dad's name then we could start probate. If your brother has a will he would need to produce it then. However, he probably doesn't have one. I have seen people lie about that countless times.

As one of the other attorneys mentioned there are different procedures depending on value. The main threshold for real estate in California probate court is more or less than $166,250. We can go over all options depending on the value.

Contact me if you want to discuss.

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