Full question:
Our mother and father were never legally divorced and lived apart for the last 15 years. He passed and there is property in his name that we have continued to make payments on, however the Mortgage Lender will not speak to us unless we go to an attorney and get a Administrator of Estate Document to provide to them. We believe my dad had insurance that paid off the property in the event of his death. Should my our mother obtain the Administrator of Estate document for the Estate or can any other member of our family obtain it? He added my brother to the Deed, however it appears that even with him on the Deed we can't get any information in regards to his property. We can't afford an attorney for a $50,000.00 balance left on this property, but would like to be able to settle this issue.
- Category: Wills and Estates
- Subcategory: Executor Deeds
- Date:
- State: California
Answer:
When a person dies, their assets are distributed in the probate process. If a person dies with a will, an executor is named to handle the distribution of the estate. If the person dies without a will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. Please see the statute below for what California uses to disqualify a person from acting as a representative of the deceased. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process. To dispose of the real property interests of the decedent, the executor or administrator executes an executor's deed or fiduciary deed.
The answer will depend in part on whether the brother was a joint tenant with right of survivorship or not. Joint tenancy is a form of ownership by two or more individuals together that differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. State law, which varies by state, controls the creation of a joint tenancy in real property. joint tenancy property passes outside of probate; however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. Each joint tenant has an equal, undivided interest in the whole property, and may enter onto, take possession of the whole, occupy, and use every portion of the common property at all times and in all circumstances. All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate.
In the case of a life tenant who holds a life estate, when the life tenant dies, their interest may pass to the remaindermen. Title may also return to the person giving or deeding the property or to his/her surviving children or descendants upon the death of the life tenant--this is called "reversion."
In California if the value of an estate does not exceed $100,000, and forty days have elapsed since the death of the decedent, an interested party may demand payment on any debts owed to the decedent through a small estate affidavit. This is a summary procedure that may be used to avoid the formal procedures associated with a regular probate proceeding.
Please see the following CA statute:
8402. (a) Notwithstanding any other provision of this chapter, a
person is not competent to act as personal representative in any of
the following circumstances:
(1) The person is under the age of majority.
(2) The person is subject to a conservatorship of the estate or is
otherwise incapable of executing, or is otherwise unfit to execute,
the duties of the office.
(3) There are grounds for removal of the person from office under
Section 8502.
(4) The person is not a resident of the United States.
(5) The person is a surviving partner of the decedent and an
interested person objects to the appointment.
(b) Paragraphs (4) and (5) of subdivision (a) do not apply to a
person named as executor or successor executor in the decedent's
will.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
