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CA Lawyer
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Category: Estate Law
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Experience:  California Attorney
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Do people that are next of kin (heirs) of a decedent have to

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Do people that are next of kin (heirs) of a decedent have to file for probate in order to claim real property owned by decedent? My brother passed last month without a will and there is my older half brother & myself as next of kin. We lost our parents in 2005 & 2006 to cancer and the brother that passed was listed on the deed of the mobile home with our parents as joint tenants. The property & personal items are worth under $100,000.00
Thank you,
Debbie
What state is the home/real property in?

What state was the brother in when he passed?

Was there a will?
Customer: replied 7 years ago.

The home is a manufactured mobile home in reltively good condition. Some repairs are needed, such as carpet new plumbing (due to it having some kind of "poly..." something piping.

We all live in the state of California, Los Angeles County.

No will.

Personal property can be transferred with an Affidavit procedure. The forms can be obtained from the local law library. They are called "Affidavit for Transfer of Small Estate."

Real property can be transferred through a summary court proceeding called a "Petition to Determine Succession to Real Property." The forms can be obtained from the county court clerk's desk or online at www.courtinfo.ca.gov. This procedure is less complicated and time consuming than a full probate.

In order to qualify for the above, the estate value has to be under $100,000.00 and certain time periods must have elapsed since the death.

Customer: replied 7 years ago.
Today is the 40th day after death as stated in the info my brother read on a CA probate site. So there is nothing else we need to do other than these 2 things?
Well, the affidavit is something that you have to do and present to someone who has personal property in order to have them give it to you. (Usually for bank accounts, stocks, safety deposits, etc.)

The petition is a little more complicated. It has to be filed with the Court and served and published and then the Court has to grant the petition and issue an order determining sucessors. They will generally make the petitioner prepare the order and make sure all the documents are served. After the court order is obtained, it would have to be recorded at the county recorders to actually transfer title.

It can also be a good idea to file the decedents final tax returns if any are due/necessary.

That should typically be all that is necessary to get the property and personal property transferred. I can't tell you whether there would be any estate tax consequences in your particular situation, but there most likely would not.
Customer: replied 7 years ago.

He had no bank accounts, credit cards or investments. He died with $200.00 in his wallet. The only thing of real value was the mobile home on the property of approximately 3/4 of an acre. Cookie cutter homes are selling in that neighborhood for about $55,000.00.

I can file the petition with the court, right? Who do we serve the petiton to? Why publish?

The notice of hearing and petition have to be served upon each person listed in the petition at least 15 days before the hearing by mail. A proof of service has to be completed and filed with the Court.

Here is a link to the petition form, so you can see who has to be listed: CLICK HERE.

After reviewing the code, I didn't see publication requirements. Sorry about the confusion.

Any person entitled to the real property can file the petition on their own behalf.

Here is a link to the laws that govern the proceeding: CLICK HERE.



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