[CA] Why am I being told to go through probate for my parents' estate when it qualifies for a small estate affidavit?
The ACP clearly states that they are to release the funds and will be held harmless from any liability if they release in good faith, and they have no duty to inquire as to the veracity of the statements in the Affidavit. It also says that they will be responsible for any attorney's fees that I might incur because they don't honor the Affidavit. I'm getting nowhere with them. Any thoughts and/or suggestions?
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You cannot use an Affidavit to collect your dad's account since your mother was the beneficiary. Since she has since passed, this means it must be paid to her estate. You have to open a probate for your mother.
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My parents' estate is valued at less than $184,500.00 and thus qualifies for an "Affidavit for Collection of Personal Property" in the state of California where my mother died (who survived my dad) and where I live. There are two different retirement accounts (one was my dad's and one was my mom's) that together are worth around $100,000. Neither account has a named beneficiary, but I am listed in each of their living trusts as an heir. Both companies are insisting that I have to go to probate in order to receive the funds.
The ACP clearly states that they are to release the funds and will be held harmless from any liability if they release in good faith, and they have no duty to inquire as to the veracity of the statements in the Affidavit. It also says that they will be responsible for any attorney's fees that I might incur because they don't honor the Affidavit. I'm getting nowhere with them. Any thoughts and/or suggestions?
I understand the situation regarding the retirement accounts and the challenges you are facing with the companies. Have you already submitted the “Affidavit for Collection of Personal Property” to the companies?
Yes.
Have you consulted with an estate lawyer in California regarding this matter?
No.
Is there anything else the estate lawyer should know before I connect you? Rest assured they’ll be able to help with your estate matter.
Yes.
Thank you for choosing AskALawyer! My name is Jessica, and I am a licensed attorney that will be assisting you with your question.
I am so sorry for your loss.
Yes, you may use an Affidavit for Collection of Personal Property for each account. Are you an only child?
I have one sister.
Ok, and you also obtained her signature to submit to the financial institution?
I did for one. I was trying to get one settled before turning my full attention to the other.
Ok, who died first—your mother or your father?
My dad.
Ok, which account did you attempt to collect first?
My mom's. She died last year, and my dad died in 2020.
Ok, that is your issue. Your mother's estate is the beneficiary of your father's account. This is because she was alive on his date of death.
Ok.
You cannot use an Affidavit to collect your dad's account since your mother was the beneficiary. Since she has since passed, this means it must be paid to her estate. You have to open a probate for your mother.
What about HER account?
You could use an Affidavit to collect her account, but since you have to open a probate estate anyway to collect your father's account, both accounts will go through her estate. Basically, you would only use an Affidavit on her account if you were forfeiting collecting your father's account.
Ok. Can you suggest the best way to open probate? I obviously don’t want to spend a lot of money for a relatively small estate.
It is best to hire a Probate Attorney. They generally charge 3% to 5% of the value of the estate.
Ok! Thank you.
