California Probate Legal Questions

There is an absolute difference between being a trustee and being a beneficiary. If your sister was added to their bank accounts and their deed, not as a trustee, but in her individual name, then legally those things belonged to her after the death of both of your parents, and are now part of her estate, not your parents' estate.  However, it is very likely that is not what your parents intended. If she was added only for convenience, you have a legal right to regain half the estate. Your niece, as your sister's heir, would be entitled to the other half.  If you want to pursue this, you will need to hire a local attorney. This is not a minor legal battle, and will incur costs in the thousands of dollars.... Read More

If there is a net value in her bank accounts (after accounting for overdrafts), you and your brothers can claim the funds using a small estate affidavit. If there is just a mess, but there is no money, you can just walk away. You have no legal obligation to straighten out your late mother's affairs.... Read More

Yes, as your mother's power of attorney you can represent her and, for example, sign a small estate affidavit as her agent. Be careful -- if your mother's nursing home is being paid for by Medi-Cal, the proceeds need to be handled carefully to not cost the loss of those benefits. If that's the case, you should meet with a local elder law attorney to discuss your best course of action.... Read More

It appears from your post that your sister is on the title and that you did not have a written financing agreement. But you do not write whether she left anything else.  If she did not, you may be able to file a DMV Affidavit of Heirship.  If she did, you may need to probate (settle) her estate through the court.  The estate can offer the car to the lender (you) or, if the lender refuses, pay off the loan.  The change in market value is relevant to your decision as the lender.... Read More

A substitute trustee (and the trust agreement should provide for one) can make a distribution out of the trust, recording a distribution deed.  If the trust agreement does not provide for a substitute trustee or for a method by which one can be appointed, contact a local estate planning lawyer about how to ask a court to appoint one.... Read More

You do not write how your sister accomplished this.  Did your mother sign the deed?  Did your sister sign it acting as your mother's agent under a Durable Power of Attorney?  If your mother signed the deed, you would have to prove that she lacked legal capacity when she did so.  If your sister signed the deed, you may be able to show that this was contrary to your mother's wishes as expressed in her Will or, if she had no Will, contrary to California heirship laws.  You could bring an action for conversion, claiming that your sister converted your mother's property to hers.  Talk with a local probate litigator.... Read More

Not conversion -- Person A is not treating the property as belonging to him (e.g., renting it out on his own account, or transferring it to himself). But he is guilty of violating his duty of impartiality by treating himself better than he's treating the other beneficiary (you). If almost the only asset is a home, I can't see any justification for not selling it. You need to get an attorney involved. The proper venue (court where any petition would be filed) would be where the home is located.... Read More

If the person known to have the original Will refuses to produce it, an heir can hire a local probate attorney to file an Application to Determine Heirship (the title varies from state to state) and, after being appointed by the court, settle the estate.  If the widow receives more under the Will than she would as an heir, she will submit the Will to court.  If not, the estate will still be settled.... Read More

The minor children are entitled to Social Security Survivor's Benefits based on their father's work record.  You can find out how to apply at www.ssa.gov.  There is also a $255 death benefit.  The pending guardianship matter will continue to be handled where the children are.  If she has not seen them for six months and is moving out of state, she is likely to lose her parental rights  An IRA which names designated beneficiaries passes to them on presentation of a death certificate.  If the IRA did not name designated beneficiaries and passes to the estate, the cost of probating the estate may be more than the amount in the IRA.  The DMV may have Affidavit of Heirship forms but unless the cars are worth selling, there may be no point in filing them.  It is not clear what the mother is fighting for or whether she would be able to prove that she was in an informal marriage and would inherit it.  You could discuss this with a local probate lawyer.... Read More