My brother died recently, without a will.He was never married, and had no kids.He has property and,monies in the bank, and from a law-suit he won against his employer. I need information on how to go forward with 'probate', papers to become the conse ...

Jurisdiction: 

Area of Law: 

Question: 

My brother died recently, without a will.He was never married, and had no kids.He has property and,monies in the bank, and from a law-suit he won against his employer. I need information on how to go forward with 'probate', papers to become the conservater of his estate. There are three other siblings also.

Selected Answer: 

Based on your initial facts,

Based on your initial facts, it looks like your brother's estate will be distributed to his intestate heirs. That is his living siblings and any issues (that is children and other decedents) of deceased siblings. The share each will receive is determined using a system called “per-capita.”

To become the administrator, that is the court appointed representative of an intestate estate, you need to petition the court using Judicial Council Form DE-111 (Petition for Probate) and DE-121 (Notice of Petition to Administer Estate, not to be confused with the Notice of Hearing - Decedent's Estate and Trust.)

But, it is not that simple, so read on.

The first question is whether or not a formal probate is required. If a decedent dies and their estate is valued at less than $150,000, simpler procedures exist. These includes, Affidavits for Transfer of Estates of Small Value (for estates worth $150,000 or less and containing less than $50,000 in real property) or Summary Probate.

If your brother's estate qualifies for a simpler procedure, the next questing is whether or not a formal probate may be desired. If you use a simpler procedures, you and your siblings may becomes personally liable for your brother's debts up to the value of the property you receive.

In contrast, formal probate contains procedures to ascertain a decedent's debts and requires the creditors to follow certain procedures before they are paid. (You and your family should not, and are not required to, pay your brother's debts unless you are a co-account holder or otherwise personal liable for the debt.) If a creditor fails to follow the proper procedure, the debt may be discharged.

Next formal probate ensures that claims of government agencies, like the I.R.S., Franchise Tax Board, MediCal, and others, are taken care of. In fact, the California Probate Code requires notification of certain agencies by the estate administrator or the decedent's family.

Finally, the court's orders in a formal probate, in particular the Order for Distribution and Order for Discharge cuts of the rights of creditors and others (If the proper procedures are followed.) This peace of mind is frequently worth the hassle of probate.

If formal probate is required or desired, the next step is deciding what court is the proper location. This is called venue. Normally, it is the court of the county where the decedent lived at the time of his death or the location of any of the decedent's real property.

As you probably figured out by now, probate is not a simple process. Probate is a regulated system, based on notice and an opportunity to object, which tries to avoid any monkey business (called a breach of a fiduciary duty) by the estate representative. It is full of potential pit-falls for the unweary or inexperienced.

For these reasons, you should consult an attorney about how to proceed. A couple of things here.

1. The attorney should not request that you pay for the consult or ask for compensation up front. The estate representative's attorney is not paid until the court approves their compensation. The attorney may ask that you advance certain costs (filing and publication fees, for example.) A $1,000 - $1,500 cost advance is not unusual.

2. If you cannot afford to advance costs (as opposed to fees) ask if the attorney will advance them for you or if you qualify for a fee waiver.

3. Make sure that the attorney is experienced in probate administration. Most attorneys practicing in the area have substantial experience, not all do. You can always ask the attorney for the case numbers of estates that they have probated and take a look at the court's online docket.

4. You should check the attorney's discipline record using the attorney search function of the California State Bar Web Site.

5. Probate attorneys are paid ordinary compensation as a graduated percentage based on the value of the estate, also called the statutory fee. The attorney may also receive additional competition for extraordinary services (if approved by the court.) The fee agreement should clearly explain these concepts.

6. Despite that attorneys are entitled to fee for ordinary services set by statute, some may make other arrangement. For example, on a particularly simple estate, the attorney may agree to the lesser of the statutory fee or a fee based on the time spent and their normally hourly rate.

Sorry for the long response, but well informed is well armed.

All Comments

Based on your initial facts,

Based on your initial facts, it looks like your brother's estate will be distributed to his intestate heirs. That is his living siblings and any issues (that is children and other decedents) of deceased siblings. The share each will receive is determined using a system called “per-capita.”

To become the administrator, that is the court appointed representative of an intestate estate, you need to petition the court using Judicial Council Form DE-111 (Petition for Probate) and DE-121 (Notice of Petition to Administer Estate, not to be confused with the Notice of Hearing - Decedent's Estate and Trust.)

But, it is not that simple, so read on.

The first question is whether or not a formal probate is required. If a decedent dies and their estate is valued at less than $150,000, simpler procedures exist. These includes, Affidavits for Transfer of Estates of Small Value (for estates worth $150,000 or less and containing less than $50,000 in real property) or Summary Probate.

If your brother's estate qualifies for a simpler procedure, the next questing is whether or not a formal probate may be desired. If you use a simpler procedures, you and your siblings may becomes personally liable for your brother's debts up to the value of the property you receive.

In contrast, formal probate contains procedures to ascertain a decedent's debts and requires the creditors to follow certain procedures before they are paid. (You and your family should not, and are not required to, pay your brother's debts unless you are a co-account holder or otherwise personal liable for the debt.) If a creditor fails to follow the proper procedure, the debt may be discharged.

Next formal probate ensures that claims of government agencies, like the I.R.S., Franchise Tax Board, MediCal, and others, are taken care of. In fact, the California Probate Code requires notification of certain agencies by the estate administrator or the decedent's family.

Finally, the court's orders in a formal probate, in particular the Order for Distribution and Order for Discharge cuts of the rights of creditors and others (If the proper procedures are followed.) This peace of mind is frequently worth the hassle of probate.

If formal probate is required or desired, the next step is deciding what court is the proper location. This is called venue. Normally, it is the court of the county where the decedent lived at the time of his death or the location of any of the decedent's real property.

As you probably figured out by now, probate is not a simple process. Probate is a regulated system, based on notice and an opportunity to object, which tries to avoid any monkey business (called a breach of a fiduciary duty) by the estate representative. It is full of potential pit-falls for the unweary or inexperienced.

For these reasons, you should consult an attorney about how to proceed. A couple of things here.

1. The attorney should not request that you pay for the consult or ask for compensation up front. The estate representative's attorney is not paid until the court approves their compensation. The attorney may ask that you advance certain costs (filing and publication fees, for example.) A $1,000 - $1,500 cost advance is not unusual.

2. If you cannot afford to advance costs (as opposed to fees) ask if the attorney will advance them for you or if you qualify for a fee waiver.

3. Make sure that the attorney is experienced in probate administration. Most attorneys practicing in the area have substantial experience, not all do. You can always ask the attorney for the case numbers of estates that they have probated and take a look at the court's online docket.

4. You should check the attorney's discipline record using the attorney search function of the California State Bar Web Site.

5. Probate attorneys are paid ordinary compensation as a graduated percentage based on the value of the estate, also called the statutory fee. The attorney may also receive additional competition for extraordinary services (if approved by the court.) The fee agreement should clearly explain these concepts.

6. Despite that attorneys are entitled to fee for ordinary services set by statute, some may make other arrangement. For example, on a particularly simple estate, the attorney may agree to the lesser of the statutory fee or a fee based on the time spent and their normally hourly rate.

Sorry for the long response, but well informed is well armed.

If someone dies without a

If someone dies without a valid will in California, they are said to die intestate. This means that California has created its own laws regarding how property will be distributed to family members if no will was created during the individual’s life. For example, according to the rules of intestacy, if your parents are not living and your brother died single and without children, then you and your siblings will inherit your brother’s estate equally.

If no will exists, the California Probate Code provides a list of individuals who are eligible to become administrator of the estate. You will file the request with the probate department in the superior court in the county where you brother resided. A notice to all interested parties is then sent out, which would include your siblings and any other relatives, for instance, if your parents are still living. A hearing is then scheduled to address any issues regarding the probate of the estate.

For more information about the probate process in California, visit http://www.courts.ca.gov/8865.htm.