Power of attorney

[Richard M]

Jurisdiction

California

My grandmother's son passed away and he has no will no spouse no children. In my experience his mother, my grandmother now has power of attorney. She does not want anything to do with the situation. Is there a document I can bring to my grandmother that will transfer power of attorney to another more willing family member?

 

[adjusterjack]

A power of attorney is no longer valid when the person dies.

The son's estate will have to be probated. As she is likely to be his heir, she can disclaim her inheritance and allow the next in line under intestacy to claim.

If she doesn't want to handle the probate any willing family member can open probate and ask to be appointed representative of the estate.

That representative can then pay the debts of the deceased, obtain the mother's disclaimer and distribute the estate to other heirs in order of succession.

If you still can't figure out what to do, you'll need a probate lawyer.

 

[Zigner]

The son's estate will have to be probated.

That is not always true. It's possible, depending on the value of the estate, that formal probate will not be necessary. Simplified Procedures to Transfer an Estate - probate_selfhelp

 

[adjusterjack]

"Probate" statutes allow for the simplified method so it's still a "probate" albeit a simplified procedure.

Note that I didn't use the word "formal" in my post.

 

[Zigner]

"Probate" statutes allow for the simplified method so it's still a "probate" albeit a simplified procedure.

Note that I didn't use the word "formal" in my post.

That's still incorrect. In CA, it's possible to use a "Small Estate Affidavit" to transfer personal property. No probate of any kind is required. Refer to California Probate Code Section 13100.

Law section

CHAPTER 3. Affidavit Procedure for Collection or Transfer of Personal Property [13100 - 13117]
( Chapter 3 enacted by Stats. 1990, Ch. 79. )

13100.
Excluding the property described in Section 13050, if the gross value of the decedent's real and personal property in this state does not exceed one hundred sixty-six thousand two hundred fifty dollars ($166,250), as adjusted periodically in accordance with Section 890, and if 40 days have elapsed since the death of the decedent, the successor of the decedent may, without procuring letters of administration or awaiting probate of the will, do any of the following with respect to one or more particular items of property:

(a) Collect any particular item of property that is money due the decedent.

(b) Receive any particular item of property that is tangible personal property of the decedent.

(c) Have any particular item of property that is evidence of a debt, obligation, interest, right, security, or chose in action belonging to the decedent transferred, whether or not secured by a lien on real property.

(Amended by Stats. 2019, Ch. 122, Sec. 5. (AB 473) Effective January 1, 2020.)

 

[zddoodah]

My grandmother's son passed away and he has no will no spouse no children. In my experience his mother, my grandmother now has power of attorney.

I'm not sure what "in my experience" adds to this, but the authority conferred by a power of attorney ("POA") terminates upon the death of the principal. Thus, your grandmother does not "ha[ve] power of attorney" relating to your deceased uncle, so your question makes no sense.

If you want to handle the administration of your uncle's estate, you will need to apply to the court in the county where he lived at the time of his death and seek to be appointed as personal representative of his estate. Of course, that assumes his estate is large enough to require probate. If it's not large enough, then it may be administered without probate pursuant to Division 8 of the California Probate Code.

"Probate" statutes allow for the simplified method so it's still a "probate" albeit a simplified procedure.

Note that I didn't use the word "formal" in my post.

No, it's not "still a 'probate.'" The only probate is "formal." Administration might be formal (i.e., probate) or not (i.e., administration pursuant to Division 8 of the Probate Code).

 

[Foamback75]

That's still incorrect. In CA, it's possible to use a "Small Estate Affidavit" to transfer personal property. No probate of any kind is required. Refer to California Probate Code Section 13100.

You did notice that said law is in the probate code, didn't you?

 

[Zigner]

You did notice that said law is in the probate code, didn't you?

Yes, of course. What's your point? MY point is that the probate process may not be required.