Legal Q&A - June 2011

DEAR READERS: Do you have a legal question that is burning on your mind?   If so, please email me.  Names will remain confidential.  Every inquiry may not be published, although we will publish as many as possible.   This Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship. 

Q:  A good friend of the family died, and he appointed me “in charge” of his “stuff”.    He did not have a Will (nor does he own a home or land), but he did leave a load of bills and some personal items that have some value.  Do I need to go to court to settle his affairs?   

Signed:  Earnest “Ernie” Executor


A:  Dear Ernie:

First, let me offer my condolences (and comment that you must have been a special friend to earn the trust to handle his “stuff”).   Next, allow me to  disclaim that I am not a probate or estate planning attorney, but after burying my father last year, watching others’ “kin-folk” fight over Auntie’s best china, and hearing the tales and tribulations from friends who have lost loved ones, I have learned a thing or two over the years.

Here’s how it works in California.  Generally, if a person dies without a Will and Living Trust and they own real estate (i.e. a home or land), and the value of the real estate is over $20,000, then a probate proceeding must be opened in the county where the deceased lived.   Now, as with any law, there are exceptions.  If the home/land is owned in joint tenancy with right of survivorship or the owners are married, probate may be avoided.

Now, you mentioned that your friend did not own a home/land.  That’s probably good, from your perspective.  So, now we have to make an evaluation of his “stuff”. In California, if the estate is valued at more that $100,000, generally a probate action must be opened.  Again, there are exceptions (for example, if the decedent is survived by a spouse).  If your friend is married, you may be OK to handle his affairs in your best capacity without court oversight.  If he was single, then you will have to value the estate and possibly open a probate if his assets are over $100,000.

California does offer a “small estate affidavit” process.  A bit tricky.  The essence is to offer a non-court procedure to instruct the financial institutions (banks, credit unions, stock accounts, etc.) to transfer your friend’s assets to the intended beneficiaries by providing a certified copy of the death certificate, along with any affidavit that complies with CA Probate Code section 13100 et. seq.

The best option is to consult with an estate planning attorney, who can advise you in more detail about the process.  Probate can get messy.  In essence, it is a long and costly legal process by which legal title of property is transferred from the Decedent’s estate to the intended beneficiaries.

The real trick is for the living to take every action NOW to avoid probate by having a Living Trust.  Two tips for the living on how to avoid probate:

Tip #1:  Find, catalog, and review all your “contract-based accounts” (bank accounts, life insurance policies, retirement accounts, etc.) and make sure you have an updated beneficiary named on those accounts; and 

Tip #2:  Any remaining assets that do not have a beneficiary should be put in a Living Trust.  You’ll need a reliable estate planning attorney to help with this one.

I wish you the best of luck.  And if it helps console you, just remember the heartfelt words of Robert Benchley, “Death ends a life, not a relationship”. 

Debra A. Newby is a resident of Monte Rio and has practiced law for 29 years.  She is a member of the California, Texas and Sonoma County Bar Associations.  She maintains an active law office in Santa Rosa and emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records).  Debra can be reached via email (debra@newbylawoffice.com), phone (707-526-7200), fax (526-7202) or pony express (930 Mendocino Avenue, Suite 101; Santa Rosa, 95401).