Here’s an all-too-typical situation: A family, consisting of Mom, property owner, and her two adult sons, comes to the office. They tell the attorney their story:
Dad, property owner — age 80, died recently. Condolences extended, acknowledged.
Mom and Dad had a living trust, which they executed several years ago.
They had taken care of business, pretty much: once their trust was formed, they had changed title to most of their assets to “Mom and Dad property owner, Trustees of the property owner Family Trust.”
Dad had always taken care of most of the family’s “business stuff.” Mom didn’t really know much about what they had.
Recently, Mom had discovered an old stock certificate for shares in a major company. According to a current stock report, the shares are now worth about $40,000. Her sons speculated that Dad had purchased the stock some years ago with the proceeds of severance pay from a former job, stuck the certificate in a drawer, and just “let it sit.” Because the stock was in Dad’s name, alone, the transfer agent of the company would not give Mom or the boys any information until they opened a probate and could furnish a certified copy of Letters Testamentary, establishing the authority of a duly-appointed personal representative of Dad’s estate. The family was sure that there were no other assets in Dad’s name, alone.
Did the property owners really have to open a probate? No — Under the terms of the California Probate Code (Sections 13100 et sec, for those who keep track), if a decedent leaves gross assets in his/her name having a value at time of death of not exceeding $100,000, and 40 days have elapsed since the decedent’s death, such assets may be claimed by the person(s) entitled to them. The claimant(s) may simply execute a Small Estate Affidavit (or Declaration under penalty of perjury), instead of commencing a formal probate proceeding.
Some institutions provide a form for this purpose. If not, the cost of having an attorney prepare such a document is usually minimal. The time for clearance of such assets is typically days or weeks, not months, once the forty days has elapsed.
Jerry Kessler practices law in Santa Clarita. He can be reached at 661-255-1001.