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Small Estate Affidavit-signing question

Discussion in 'Estate Administration & Probate Court' started by Jelly2, May 2, 2021.

  1. Jelly2

    Jelly2 Law Topic Starter New Member

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    My son passed away intestate and has no spouse or children. A small estate affidavit qualifies since his property total is only $5K. My ex refuses to sign any paperwork so I can get this done. I've given him a document that I would have notarized that says he relinquishes his inheritance on the property (spells out exactly what I'm asking for) so I could legally sign the affidavit and not perjure myself. However he refuses to cooperate, says in an email I can have the checks, he doesn't care. He is extremely lazy and drags his feet. I need this money as reimbursement for mortuary fees, time off work, legal fees, etc.

    What are my options in getting this done? Can I petition the court to force him to sign the small estate affidavit at least? He's preventing me from closing up my son's affairs.
     
  2. army judge

    army judge Super Moderator

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    Were you and the other person married legally?

    Is the other person the other birth parent of the deceased?

    If you and the other party were NOT legally married when the deceased was born, did the other party establish paternity via the courts, which involves genetic testing?

    If you can answer NO to all three questions, you won't need the procrastinating party to sign anything.

    If you answered YES to at least one of the above questions, I suggest you consult an attorney and steel yourself for a nasty brouhaha.
     
  3. Jelly2

    Jelly2 Law Topic Starter New Member

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    Yes, he is the parent. We are divorced. What legal steps can I take? Petition the court? As a side note I plan on filing a wrongful death civil suit against him. I’ll be doing that on my own. I may just go ahead and file it now. Might prompt him to actually do something.

    So I have no legal recourse to get him to sign anything? Take him to small claims court for reimbursement?
     
  4. Zigner

    Zigner Well-Known Member

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    You will want to contact an attorney for help in that. It's far from a do-it-yourself project.

    No, he has no legal obligation to sign.
     
  5. welkin

    welkin Active Member

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    Call the probate court and ask the clerk what you must do to file the affidavit when a divorced parent refuses to cooperate . The probate court may help you.
     
  6. sandyeggo

    sandyeggo Member

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    He killed your child?
     
  7. Zigner

    Zigner Well-Known Member

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    The small estate affidavit isn't turned in to the courts, rather, it is an affidavit that is presented to entities in order to allow them to release the property/funds to the affiant.

    No additional signatures are required beyond that of the affiant.

    The italicized portion above may not be correct. @zddoodah - would you like to comment?

    https://www.courts.ca.gov/documents/Affidavit_personal_property.pdf
     
    Last edited: May 3, 2021
  8. zddoodah

    zddoodah Well-Known Member

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    No. He has no obligation to cooperate with you.

    What specific assets are you seeking to acquire?

    Reimbursement of what?

    Court clerks are prohibited from giving such advice and assiduously comply with that prohibition.

    Probate Code section 13101(a) spells out the contents of the so-called "small estate affidavit," including "[t]he name of the successor of the decedent (as defined in section 13006 of the California Probate Code) to the described property," and the following statement: "The affiant or declarant is the successor of the decedent (as defined in Section 13006 of the California Probate Code) to the decedent’s interest in the described property.”

    In situations where the decedent has died intestate, section 13006(b) defines "successor of the decedent" to mean "the sole person or all of the persons who succeeded to the particular item of property of the decedent under Sections 6401 and 6402." Section 6401 isn't applicable here because it deals with intestate succession to community property. Section 6402 deals with intestate disposition of "the entire estate if there is no surviving spouse." Where, as here, the decedent has no surviving spouse or issue, the intestate estate passes "to the decedent's parent or parents equally."

    The bottom line is that, in the OP's situation, the "small estate affidavit" has to have both parents' signatures.
     
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  9. Zigner

    Zigner Well-Known Member

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    Thanks z
     
  10. welkin

    welkin Active Member

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    Who said it gets filed with the court? But the process and enforcement is controlled by the probate code.


    It never hurts to ask and I'm sure this situation is not new.
     
  11. Zigner

    Zigner Well-Known Member

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    You did:

     
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  12. zddoodah

    zddoodah Well-Known Member

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    Here are some other things that also never hurt to ask:

    1. A fan showing up at an NFL game and asking to do the opening kickoff.
    2. A fan showing up at at Iron Maiden concert and asking to sing lead on The Trooper.
    3. A person showing up at Coca Cola headquarters and asking to see the secret formula.

    Sure, it might not "hurt" to "[c]all the probate court and ask the clerk what you must do to file the affidavit when a divorced parent refuses to cooperate." Here are the responses you're most likely to get:

    1. Sorry, we cannot give legal advice; you'll need to consult with a lawyer.
    2. What are you talking about? You don't "file the [small estate] affidavit" with the court.

    I'm sure you're right, but that doesn't have anything to do with anything.
     
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