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Do you have to go through probate to settle it

Customer Question
do you have to go through probate to settle it
Submitted: 2 years ago.Category: Estate Law
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Answered in 8 minutes by:
2/14/2016
Estate Lawyer: RONB-ESQ, Attorney replied 2 years ago
RONB-ESQ
RONB-ESQ, Attorney
Category: Estate Law
Satisfied Customers: 357
Experience: Right of Way Manager at Access Midstream Partners, LP
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Hello my name is ***** ***** I am a licensed attorney. I welcome you to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. The question and response may be viewed by other parties as noted in JA’s terms of service. By continuing, you confirm that you understand and agree to these terms.

Could you elaborate or tell me more about who died, when, and what it is you want to settle?

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Customer reply replied 2 years ago
my husband past away he did no have a will he bought a mobile home as separate property I gave him he down payment
for the home I helped with the up keep do I have to share it with his son who his son who has not been around to help with anything there is still a mortgage left on it I rented it out so hat the mortgage would be paid his son seems to think he has claim
will I have to go through probate
Customer reply replied 2 years ago
is there some other way to settle this the home is worth about $80.000 dollars I want to sell it my husband and I talked about it before he past away he told me what to sell it for
Estate Lawyer: RONB-ESQ, Attorney replied 2 years ago

I am sorry I had to run an errand and I am stepping away for dinner now. I will be back online around 7:30 PM CST and will respond to your question then and any more information you post.

Regards,

Ron

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Estate Lawyer: RONB-ESQ, Attorney replied 2 years ago

I am back online and had one question. Did you own the real property (mobile home) as community owners with rights of survivorship? Since you mention it being separate I am assuming no, but please correct me if I am assuming wrong. Also is the mobile home deemed real property in California. Are property taxes paid on it? Were the axles removed and was it placed on land to stay there permanently or is it mobile more in the fashion of an R.V.? If you are online I will wait a while for your answer. If not I will use some assumptions and answer and then you can ask follow up questions in case i assumed wrong for free.

Regards,

Ron

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Estate Lawyer: RONB-ESQ, Attorney replied 2 years ago

(Your question I believe)

“My husband past away he did not have a will. He bought a mobile home as separate property. I gave him the down payment for the home. I helped with the up keep. Do I have to share it with his son who has not been around to help with anything? There is still a mortgage left on it. I rented it out so that the mortgage would be paid. His son seems to think he has claim. Will I have to go through probate?”

I am going to assume the mobile home is deemed real property and assessed property taxes and is not similar to a movable R.V. I am also assuming that though he purchased as his separate property, he purchased it during your marriage and you comingled community property during the maintenance and mortgage payments. By that I mean that you paid the mortgage payments out of your joint account and/or paid for the maintenance out of your joint account. I am also assuming that the deed is in his name only. If you own it as community property with right of survivorship then you own it upon his death and there is no need to probate it. Based on the assumption that it is in his name alone then it will require probate, but it may be a simpler probate that most.

You don’t qualify to use a small estate estate affidavit http://www.courts.ca.gov/documents/de305.pdf as that is limited to estates of less than $150,000 with the real property being worth less than $50,000.00. If it was $50K or less this would be the easiest option. This value is the gross value of the real property so you don’t deduct the mortgage from the value to determine if you can use the small estate affidavit.

In your case I would think a spouse could make a valid argument that even though the home was purchased as separate property, once the payments and/or maintenance was paid with community funds the property became community property. In that case, in California since he died leaving one son you will inherit all of the community property (mobile home along with other community property) and his son will inherit ½ of his separate property. See this chart though it is not the actual statute it is easier to read http://www.nolo.com/legal-encyclopedia/intestate-succession-california.html you can read the CA statute here http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=06001-07000&file=6400-6414

In a case like this where the real property has a gross value of more than $50,000, but the total estate does not exceed $150,000 the spouse can use a simplified probate procedure. See this article that helps explain it scroll down to simplified procedure http://www.nolo.com/legal-encyclopedia/california-probate-shortcuts-31777.html you would use this form http://www.courts.ca.gov/documents/de221.pdf

In a case like this the child of the decedent would just be entitled to a portion of his separate property. See §6401(c)(2)(A) here http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=06001-07000&file=6400-6414

Again, I would argue that the mobile home became community property once it’s upkeep and/or payments were commingled with community assets.

If you have any questions or concerns about my response, please reply and let me know. It's important that you are 100% satisfied with my courtesy and professionalism. Otherwise, please rate my service positively so I receive credit for the time I spent answering your question. If for some reason you don’t feel you can provide me positive feedback please reply and give me the opportunity to clarify my answer before giving me negative feedback.

Regards, Ron

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Experience: Right of Way Manager at Access Midstream Partners, LP

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