Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len & Rosie,

My younger sister died without a will. She had almost no money. Sadly enough, she also left a 16-year-old son. She did have some life insurance of which I am the beneficiary, but she left two paychecks as well.

I will set up an account to pay for her son’s care, but in order to cash the paychecks, I need to be named Administrator of my sister’s estate. How can I do this myself so I can save money for her son? Everyone at the bank says I can easily be named as Administrator, but what do I need to do? Her son is such a good kid and wonderful student. If I can do this myself instead of spending money on a lawyer, I would be so grateful.

Moira

Dear Moira,

Administrator is just another word for executor. The only difference is that executors are named in wills, and administrators are appointed directly by the court. The duties and authority of administrators are exactly the same as those for executors.

The bank is telling you that you need to go to court, file a petition for probate, and get appointed as administrator of your sister’s probate estate before you can cash her old paychecks. This is incorrect. Because your sister’s estate is worth so little, you can take a legal shortcut. If your sister died as a resident of California and her estate is worth less than $150,000, then her heirs can skip probate and collect her assets with a small estate declaration under California Probate Code section 131001. Many banks know about this and even have their own small estate forms.

There are several twists you should know about. First, you have to wait until 40 days after your sister’s death to be able to sign the 13101 declaration, and you will also have to give the bank a certified copy of your sister’s death certificate. Also, you will become personally responsible for your sister’s debts, up to the amount of money you collect using the declaration.

But you can’t just sign a small estate declaration just yet. Assuming your sister wasn’t married, her son is her sole heir and shall inherit the entire estate. The problem is that your nephew is still a minor, and cannot legally execute a small estate declaration. You can sign it for him, but you have to have the legal authority to do so. That’s why, after all this discussion of avoiding probate and saving on legal fees, I am sending you off to an attorney. In order to legally collect your sister’s estate and hold it for your nephew, you have to go to court.

There are two things that you can do. You can petition the court for appointment as your nephew’s guardian, which I think you should try to avoid. There isn’t a lot of money here and the guardianship will last only two years anyway. What I think you should do is to petition the court under Probate Code section 3410 to put the money into a blocked account, or into a custodial account under the Uniform Transfers to Minors Act. You will not have escaped the clutches of the court, but at least you will have avoided probate.

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 707-996-4505, or at LenTillem.com. Len has a new video channel on YouTube.

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