Can a personal representative use a Small Estate Affidavit to transfer the estate to the benes?

[Anthony Saccaro]

Jurisdiction

California

Facts: Decedent has a will which leaves his estate equally to his two daughters. The will names an executor, who is not one of the daughters, who wishes to be paid for her part in the administration of the estate and the will permits this. The only asset in the estate is a single bank account with Bank of America in the amount of approximately $25,000. Because of the size of the estate, using a Small Estate Affidavit as per probate code 13100 seems to be the best method of distribution. The complication though is that the executor is responsible to pay final expenses along with paying herself before she is comfortable distributing the remainder to the beneficiaries.

As a note, the executor is also the agent for decedent's Durable Power of Attorney which of course is no longer valid. Theoretically, because Bank of America has not been notified of death of the account holder, the agent could pay expenses from the bank account under the DPOA; however, this does not seem appropriate.

The question then is this: Can an executor, without having opened formal probate or submitting the will to the court, use a Small Estate Affidavit to claim the assets, pay appropriate expenses from those assets, and then distribute any remainder to the beneficiaries?

Thank you!

 

[adjusterjack]

The only asset in the estate is a single bank account with Bank of America in the amount of approximately $25,000.

Um, somebody better check that account and see if there is a beneficiary listed. If there is then the account belongs to only that beneficiary and is not part of the estate.

Theoretically, because Bank of America has not been notified of death of the account holder, the agent could pay expenses from the bank account under the DPOA; however, this does not seem appropriate.

It's not only not appropriate, it's illegal because the DPOA expired at the time of death.

Can an executor, without having opened formal probate or submitting the will to the court, use a Small Estate Affidavit to claim the assets, pay appropriate expenses from those assets, and then distribute any remainder to the beneficiaries?

Yes.

You can read the process at the CA court website:

Simplified Procedures to Transfer an Estate - probate_selfhelp

 

[army judge]

Can an executor, without having opened formal probate or submitting the will to the court, use a Small Estate Affidavit to claim the assets, pay appropriate expenses from those assets, and then distribute any remainder to the beneficiaries?

A question that uses "can someone do something" can be answered two ways:
1) Anyone CAN do almost anything
2) Can implies that a person CAN accomplish a task, if said person possesses the ability to do so.

That said, no one UNFAMILIAR with the "executor" (more appropriately in your scenario -the executrix-), as in internet strangers is in a position to speak the capabilities of the unknown "executrix".

I suggest you advise the two "beneficiaries" to engage the services of an attorney to ensure their legal interests are not ignored.

 

[Anthony Saccaro]

Thanks Amy. The better way to have asked the question is whether she can "legally" do what is being requested. The benes and the executrix are acquainted with each other and the executrix is going to follow the mandates of the will. The only issue though is whether she can use a Small Estate Affidavit to claim the asset, pay the expenses, and then distribute the funds to the benes. If so, what is the procedure that she needs to use to accomplish this.

 

[army judge]

Yes, there might be a better way.

@adjusterjack describes it in Post @2 above, but I've copied it below.

\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/

Um, somebody better check that account and see if there is a beneficiary listed. If there is then the account belongs to only that beneficiary and is not part of the estate.



It's not only not appropriate, it's illegal because the DPOA expired at the time of death.



Yes.

You can read the process at the CA court website:

Simplified Procedures to Transfer an Estate - probate_selfhelp

 

[Anthony Saccaro]

Yes, there might be a better way.

@adjusterjack describes it in Post @2 above, but I've copied it below.

\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/

There are no benes listed on the bank account. That would have been way too easy!

 

[zddoodah]

I'm not sure what it might mean to "use a Small Estate Affidavit to . . . pay . . . expenses" or "distribute [any remaining] funds to the benes," but she can use the small estate affidavit to gain control over the money in the account. The whole point of the small estate affidavit process is to avoid formal probate.