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Relative passed with no will. Next steps?
Old 11-28-2018, 09:34 AM   #1
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Relative passed with no will. Next steps?

DW and her siblings had a fraught relationship with their Dad. He cut off most contact with them 25 years ago when he and DMIL divorced, but they'd see him once or twice a year for a brief check-in. We found out this weekend that he passed away. DW is physically the closest to where he was living, so it makes the most sense for her to try to put his affairs in order. We don't know if he had a will. The landlord where he was living allowed her into his apartment, and she collected some documents, but there was no will among them. He was 90, and may have some meager savings after his final expenses are paid, but mostly we just want to do what's legally and morally right.

Questions:

1. What's the process for determining if he had a will or executor?

2. Assuming that no will or executor is found, will the court appoint DW as executor?

3. He died in his apartment, and had some dementia issues. The place is in bad shape. Likely a service that can handle biowaste and cleanup will be needed. Appropriate for DW to hire a service for cleanup? Can this be billed to his estate? DW doesn't feel leaving this to the landlord is fair.

4. Assuming he has sufficient funds, how to determine priority for paying any outstanding debts? He definitely has some medical bills that are outstanding, as well as the typical utilities.

5. In the paperwork that DW found so far, he had a small checking account, and a small IRA. Can the IRA funds be used to settle his debts?

I know from previous posts here that we should request many copies of the death certificate, which DW will do. Neither of us has any experience handling a situation like this, so any guidance on the questions above, or any other practical considerations would be much appreciated.
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Old 11-28-2018, 09:45 AM   #2
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Many states have different processes for small estates vs large estates... in many states, estates less than $10k avoid probate. Did his checking account have a co-owner? Similarly, did his IRA have designated beneficiaries? If the answer to those questions is yes, then there may not be an estate to be probated at all because the checking account would become the property of the co-owner and the IRA will go to the beneficiaries.

You'll need to decide how much effort and expense that you are willing to expend on his apartment... unless there is something in there of value that you want, you could just walk away and it is the landlord's problem but the landlord will get to keep any security deposit and may have a claim if there is an estate. I'm not necessarily advocating that you walk away, but just saying that if the costs exceed what is in the estate that you have no legal obligation to ante up the difference.
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Old 11-28-2018, 10:08 AM   #3
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Intestate succession in California.
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Old 11-28-2018, 10:24 AM   #4
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Hopefully you have searched the apartment extensively..
My Grandmother stashed $$ and gov't checks under the rug, which we found later.

Right now, I don't think you actually have any rights (but I don't really know), however I'm sure the landlord wants this to resolve and will let you in again if needed to extensively search, grab sentimental things.

I mention the right to do stuff as how would you clean out the apt, with the right to do so. It could leave you liable for losing lost insurance documents, paper stocks, Bond, cash, etc.

If it's a big landlord, they might have experience with this. Otherwise there are services the take away junk.

I know if we died right now, and the kids came here, it would probably take them many days to find everything, and they would still miss out on stuff I have hidden, like a couple of rifles.

I found Grandpa's old shotgun and box of shells, approximately 70 years after he hid it in the old family cottage. Glad I found it as an adult, and not a kid. Obviously my Mother had no idea it was hidden there.
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Old 11-28-2018, 10:37 AM   #5
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Your profile says you are in California. Did your FIL also live in CA? If so, then you probably do not have to go through probate as it sounds like he did not own a home or car and the estate will be worth less than $150K.

For your questions (I am not a lawyer, but this is what I learned from helping with a similar situation):

1. There's no official process for finding a will. If it's not in his personal papers and there is no contact information for an attorney and no family member is aware of a will, then you proceed as if he did not have one.

2. You don't have an executor if there's no will. Your DW could be named the administrator of the estate, but you probably don't even need that.

3. The estate can pay for any necessary cleaning of the apartment after other higher priority debts are satisfied. Your DW should first talk to her siblings and get agreement from them that any money he left will be used for this purpose and that she has their permission to handle this. They are all equal heirs, so avoid as many problems as possible by being fully transparent and keeping a good accounting of all expenses that are paid out of the estate's funds. Once the siblings agree that the estate is paying for this, I'd actually ask the landlord to hire the cleaners and offer to reimburse any costs above the security deposit.

4. The priority for paying off debts is: federal tax, state tax, funeral or burial expenses, other debts. The landlord and utilities fall under other, so they cannot be paid until everything else is settled. I'm guessing there's probably no tax due, so it's just burial expenses and then the other debts. You should double check state law on this, I'm going from memory. I'm also not sure what happens if there's not enough money to discharge all the "other" debt. It may be that each creditor gets paid proportionately. I don't think you can choose who to direct money to and who will get shorted.

5. If the IRA has a beneficiary, then it belongs to that person. If not, then you will have to contact the custodian and ask about their process for transferring the funds. I don't know whether they'll come into the estate as taxable income, which you could then use for settling debts before distribution to the heirs, or whether the custodian will establish inherited IRAs for each sibling and transfer the funds that way. Whatever institution holds this money will undoubtedly have forms that need to be filled out and notarized.


Edit: Here's the California Affidavit for Transfer of Personal Property Worth $150,000 or less: http://www.courts.ca.gov/10440.htm
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Old 11-28-2018, 10:44 AM   #6
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what has your attorney advised?
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Old 11-28-2018, 10:59 AM   #7
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If he died without a will, I believe a probate is needed, if any assets are involved. If you find a will, probate may not be needed with assets under a certain amount. It used to be $ 60k might be higher now.

If you are in Los Angeles County , send me a pm. My probate atty would probably give a consul at little or no charge.

Otherwise I suggest contacting the County Public Administrators office. Treasurer and Tax Collector - Public Administrator - General Information They handle cases were the decedent died intestate.
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Old 11-28-2018, 11:22 AM   #8
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Thanks you all so much for the feedback and links to resources so far, it’s incredibly helpful. To answer a few questions:

All parties are in California. Cathy63, thanks for the link. His estate will be well under the $150K threshold, which should make things simpler.

His checking account had only his name, so presumably that becomes part of the estate.

Among his paperwork, we found an old IRA document that listed DW and one of her siblings as beneficiaries, excluding the third sibling. If I understand the above correctly, that transfers to the beneficiaries on his death, and isn’t part of the estate. He since rolled that IRA over to another company, so no idea if he specified the same beneficiaries (or any) in the current account. Once we get death certificates in hand she’ll contact the financial institution to find out. If nothing changed, DW will probably want to give some part of this to the excluded sibling, but we may just need to gift her cash, since transferring IRA money seems complicated.

We don’t have a lawyer, and I’m not keen to hire one unless absolutely necessary. So far, all parties are amicable, and just trying to find the most straightforward path to wrapping up their Dad’s affairs. Obviously, if things get more contentious or complicated, we’ll consult an attorney.

Thanks again, everyone, I really appreciate the assistance.
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Old 11-28-2018, 11:25 AM   #9
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My DIL is a retired lawyer, but not an estate lawyer. Her aunt passed away (near Chicago) and DIL lives in FL. She came up to try and straighten things out, as the situation was similar to the OP and even worse. She struggled for two weeks going through what was be a living hell... dealing with more details than we could imagine. Long and short it was a "never again". Between the city, the state, the federal government and papers that went back dozens of years, an impossible task for one person, even with help.
She finally turned it over to a lawyer operation that regularly deals with this kind of situation. The cost about balanced out the limited assets, and the reduced value of an old house which value was less than the value of the land beneath. All in all, the net that was left didn't pay for the airfare and hotel cost.
Never again.
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Old 11-28-2018, 11:27 AM   #10
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Quote:
Originally Posted by cathy63 View Post
Your profile says you are in California. Did your FIL also live in CA? If so, then you probably do not have to go through probate as it sounds like he did not own a home or car and the estate will be worth less than $150K.

For your questions (I am not a lawyer, but this is what I learned from helping with a similar situation):

1. There's no official process for finding a will. If it's not in his personal papers and there is no contact information for an attorney and no family member is aware of a will, then you proceed as if he did not have one.

2. You don't have an executor if there's no will. Your DW could be named the administrator of the estate, but you probably don't even need that.

3. The estate can pay for any necessary cleaning of the apartment after other higher priority debts are satisfied. Your DW should first talk to her siblings and get agreement from them that any money he left will be used for this purpose and that she has their permission to handle this. They are all equal heirs, so avoid as many problems as possible by being fully transparent and keeping a good accounting of all expenses that are paid out of the estate's funds. Once the siblings agree that the estate is paying for this, I'd actually ask the landlord to hire the cleaners and offer to reimburse any costs above the security deposit.

4. The priority for paying off debts is: federal tax, state tax, funeral or burial expenses, other debts. The landlord and utilities fall under other, so they cannot be paid until everything else is settled. I'm guessing there's probably no tax due, so it's just burial expenses and then the other debts. You should double check state law on this, I'm going from memory. I'm also not sure what happens if there's not enough money to discharge all the "other" debt. It may be that each creditor gets paid proportionately. I don't think you can choose who to direct money to and who will get shorted.

5. If the IRA has a beneficiary, then it belongs to that person. If not, then you will have to contact the custodian and ask about their process for transferring the funds. I don't know whether they'll come into the estate as taxable income, which you could then use for settling debts before distribution to the heirs, or whether the custodian will establish inherited IRAs for each sibling and transfer the funds that way. Whatever institution holds this money will undoubtedly have forms that need to be filled out and notarized.


Edit: Here's the California Affidavit for Transfer of Personal Property Worth $150,000 or less: Affidavit for Transfer of Personal Property Worth $150,000 or Less - probate_selfhelp
1. If a will was registered with the probate court, it may be able to be located that way. Otherwise, I agree.

3. I don't think permission from the other siblings is needed to use estate funds. If a tenant moves, aren't they responsible for paying for cleaning (if needed)? The estate should be responsible for the cleaning expenses.

4. Whoever is executor/administrator needs to be sure that debts get paid according to state law. The executor/administrator may be held personally liable if there aren't enough funds to pay all the bills and a lower-priority creditor is paid before a higher-priority creditor. Also, state law dictates how long creditors have to file claims against an estate. Creditors don't get paid proportionately. Some will get nothing if there aren't enough funds in the estate. Here is an article explaining these concepts:

https://www.alllaw.com/articles/nolo...ts-estate.html

5. Here is a thorough guide on how to claim assets in a retirement account, either as a beneficiary or an executor/administrator (if no beneficiaries were named):

https://www.schwab.com/public/file/P-1625576/
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Old 11-28-2018, 11:38 AM   #11
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FYI

Bank IRAs, CDs, etc can have a POD [pay on death] listed for those funds. As I understand it, POD supersedes even a will and the person listed as the one paid upon death is under no obligations to do anything he doesn't want to with those funds.
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Old 11-29-2018, 01:09 AM   #12
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All great info thus far. I would only add, be sure to check with other local banks or credit unions if you suspect he may have had other accounts. I've been in banking industry for many years and I can't even begin to tell you how much we have escheated to the state in unclaimed funds.
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Old 11-29-2018, 05:53 AM   #13
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what forms of id or papers would you need to withdraw from a bank account if the person has passed?
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Old 11-29-2018, 07:15 AM   #14
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My sympathies on your loss and the situation you're facing.

I'm glad you're all getting along and the most important thing is to keep it that way. That's more valuable than any potential inheritance.

I've learned over the years that if you think you "might" need an attorney to handle something, you already need one.

I think it would be very valuable for your family to have a neutral third party to administer this. It could prevent any hard feelings that may arise, even if everyone's intentions are good. I'd give anything to have a family member that I got along with, don't let anything jeopardize it.

Good luck to you and your family.
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Old 06-24-2019, 06:47 PM   #15
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Just bumping this old thread to note that its taken this long, but FILs estate has finally been wrapped up. It took many, many visits and phone calls to his bank to get the small-estate affidavit recognized, and his accounts split and transferred to DW and her siblings. After all that pain, it took less than a week to get DWs inherited IRA transferred over to Vanguard. While there was probably not a legal requirement to do so, DW and her siblings all agreed to pay the landlord for cleanup fees, so everything has been settled now.

Many thanks to everyone who offered help and suggestions in this thread!
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