Anthony Saccaro
New Member
- 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As a note, the executor is also the agent for decedent's Durable Power of Attorney which of course is no longer valid.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!
As a note, the executor is also the agent for decedent's Durable Power of Attorney which of course is no longer valid.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!