Q: Who has the responsibility to file probate for a person that died without a will or trust & what if this was not done?
The husband of 8 months took over because he lived in HER house & he was able to ascertain what he could take after gaining access to her accounts. He was able to take everything (including her ashes) & he took most of it illegally. He was not named on any of her assets. He only paid her a portion of his paycheck every month for expenses. They did not co-mingle their money. He intentionally blocked her family members from getting involved in settling her estate. He also refused to pay known debts. He has avoided filing for probate even though her assets well exceed the threshold for filing for probate. I've have not been able to find an attorney that will help except one office provided California legislation about Intestate Succession which states how her estate should be divided given that she has a living parent. Considering I can't find an attorney that is willing to help, can anybody file for probate and can it be done without an attorney? Shouldn't this be reported to the courts?
A: Any interested party can open a probate case for a decedent. It does not have to be the surviving spouse. It could be an adult child or adult sibling or even surviving parent. Or a creditor. But you will find this a whole lot easier to navigate with the assistance of a probate attorney. There is no law that says you must hire an attorney; it's just a lot smoother and easier that way and you will probably end up with a better result.
James Edward Berge agrees with this answer
A: No one has the responsibility to file a court petition to probate a decedent's estate. If there are no assets subject to probate, there's no need to file for probate or to be appointed as the personal representative for a decedent's estate. Anyone who is an heir to property belonging to the decedent's estate may file for probate. Certain family members are given priority if there are competing petitions filed. Spouse will get first dibs on the job, followed by the children. The heirs of the estate include the surviving spouse and the children. If you have questions about your rights as a child in a share of the estate, you should consult a probate attorney right away.
1 user found this answer helpful
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.