Probate Statue Limitations

What is the name of your state? California

My mother passed away approximately two years ago. My brother was named executor. He has not started anything on the probate. I am concerened if there is a limit on the time or Statue of Limitations for which probate should be filed. Also if the beneficiaries fail to make a claim right away are they jeopardizing any claim on the will.

Has the brother given any type of explanation as to why he has not filed yet? Normally the will is supposed to be filed within 30 days of the death. Check at the courthouse to see if it has been filed.

The only justifiable reason he would have for not filing it would be is if the estate assets did not add up to enough to meet the minimum filing requirements for the state of California, or if the debts exceed the amount of assets. If you know for sure that this is not the case, then you should consider hiring your own probate attorney to file a petition to ask the probate court judge to order the executor to produce the will if he has it or face legal consequences.

DANDY DON

Dandy Don said:

Has the brother given any type of explanation as to why he has not filed yet? Normally the will is supposed to be filed within 30 days of the death. Check at the courthouse to see if it has been filed.

The only justifiable reason he would have for not filing it would be is if the estate assets did not add up to enough to meet the minimum filing requirements for the state of California, or if the debts exceed the amount of assets. If you know for sure that this is not the case, then you should consider hiring your own probate attorney to file a petition to ask the probate court judge to order the executor to produce the will if he has it or face legal consequences.

DANDY DON

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My response:

I must respectfully disagree with our good friend, Dandy Don.

In California, there is no specific time limit within which a petition for probate must be filed. The Code simply states that the petition may be filed at "any time after a decedent's death." [Ca Probate § 8000(a)]

Any "interested person" may petition the court for appointment of a personal representative or probate of decedent's will, or both. The petitioner need not necessarily be a named executor or eligible administrator. [Ca Probate § 8000(a); Arman v. Bank of America, N.T. & S.A. (1999) 74 Cal.App.4th 697, 701, 88 Cal.Rptr.2d 410, 413--"interested persons" include anyone having interest in estate that may be affected by probate proceeding.

If there is no property that needs to be "accessed" - - for example, the ability to get into a savings, or checking, account or to get into a safe-deposit box, then there is no legal compulsion to Petition the court for Probate by anyone.

In summary, no one is "compelled"; i.e., "supposed" to file anything if they don't want to. One of the only reasons for probate is to receive "Testamentary Letters" that allow property; e.g., money, real estate, personal property, to be accessed and to have ownership titles changed to the heir's name.

But, like I said above, if there is a reason to file such a Petition, "anyone who is interested in the Estate" may Petition the court for Probate.

IAAL

Thank you, IAAL, for your perspective on this unusual situation.

I was just wondering: what happens when the brother finds out that someone else has applied to become executor? Can he do something to protest that action or how will the judge make the final decision of who is going to be the official executor?

DANDY DON