Hi there,
I'm an executor for my father's estate, which currently holds a share of mineral rights on two properties (non-producting), one in Kern County, the other in Kings County, California.
The will requires my father's estate to be split amongst myself and two siblings. My father's will, place of residence, and place of death were out-of-state (out-of-country, to be exact).
No assets of my father's estate have required probate so far, and I would naturally like to avoid paying probate fees if possible.
I'm pretty sure I'll need a lawyer at some point, but can anyone offer a high-level view on what the process of transferring the rights will be? And, more importantly, if probate will be required under these circumstances?
Thanks!
Dear Mr. Davidson,
An unprobated will is treated as if no will existed. So, if probate has not been opened, you are not the executor of your father's estate. You only status would be the named executor in a will that was written that your father signed.
The purpose of probate is to ensure the validity of the will and that the well was self proving and the will presented was actually the last will of your father. In order to be an executor, you will have to go to court, take an oath, etc and have your status confirmed.
In most states, if probate is not commenced within a certain time after death, probate cannot be opened.
Perhaps you need to talk to an attorney about your rights and duties, sooner, rather than later.
Buddy,
Thanks for taking the time to reply. Looks like I will need to talk to an attorney sooner rather than later. But probate requirements do vary. The estate I'm dealing with is in British Columbia, where probate is not necessary in all estates. The authority of the executor is derived from the will, not probate. Many institutions like banks and land title offices may require probate in order to release estate assets to the executor, but if none of the institutions holding estate assets require probate in order to release estate assets to the executor, then probate is not required in order for the executor to fulfill his duties. With or without probate, I am an executor of my father's estate.
So my questions on process still remain. In Kern and Kings counties, can I demonstrate my authority as executor by simply showing the will, or will somebody insist on letters probate? The unfortunate thing for me at this time is that should probate be required, the probate fees for the estate will probably be worth more than the mineral rights themselves. In BC, when probate is required to release a particular asset, probate fees must be paid on the entire estate, not just those assets requiring probate.
Lawyer time, I suppose.
Thanks again,
Hugh
There is another option. To not open probate proceedings and allow the estate to pass by intestate descent and distribution. Renounce the will and file an Affidavit and Heirship.
As to laws, the law that counts is the law where the property is located.
Talk to a California Lawyer about this to make sure that I am not off base.