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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 33803
Experience:  15 yrs estate law, real estate. Wills/Trusts/Probate
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My mother died in a fire which destroyed her home last

Customer Question

My mother died in a fire which destroyed her home last month. As Co-Executors of the will, my sibling and I are trying to start probate in California. My question is whether we can use one of the simplified procedures. It depends on the value of her real and personal property on the date of death. What does this mean when it comes to a home, and much of the personal property, destroyed by fire? Do you value the property at its value right before the fire, assuming insurance will rebuild or replace it, or do you value it as it stands after the fire? If before, the home was worth $180-200K (with a $140K mortgage), and personal property was worth about $30-50K. If after, the real property is likely worth less than $50K, and the personal property worth $5-10K. How do we determine the estate value?
Submitted: 9 months ago.
Category: Estate Law
Expert:  Barrister replied 9 months ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

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What does this mean when it comes to a home, and much of the personal property, destroyed by fire? Do you value the property at its value right before the fire, assuming insurance will rebuild or replace it, or do you value it as it stands after the fire?

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Value is after the fire as those assets would go into her estate and be subject to her will. This also applies to any insurance money that may be coming in to pay for losses.

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So you would be well under the small estate affidavit limit, and since there is real estate worth $50K or less, you could use an Affidavit (FORM DE-305) to transfer real estate and a normal Affidavit for the personal property like the one here:.

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Small Estate Affidavit Personal Prop

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thanks

Barrister

Customer: replied 9 months ago.
I'm confused by your answer. If I value the personal and real property after the fire, it puts me under the limit, as you say. But if I also have to include the estimated insurance proceeds (her policy included $30,000 personal and $270,000 to rebuild the home) which we cannot access until we are appointed personal representatives, it puts us over the limit.
Expert:  Barrister replied 9 months ago.

Sorry for any confusion...let me explain.

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Since you have a reasonable anticipation that the insurance will put you over the limit, you have to go through a full probate proceeding. The small estate affidavit process only applies if the entire proceeds are under that $150K limit.

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So before fire you are over that, and after fire you are over that (due to insurance proceeds which will come in).

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I wasn't sure if there was insurance to be paid out or not since you didn't mention it initially. Some unwise people don't have insurance so they just take a loss..

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thanks

Barrister

Customer: replied 9 months ago.
I did mention the insurance.
Expert:  Barrister replied 9 months ago.

I apologize, you actually did where you said assuming that insurance will cover it.. I have to scroll up and down the screen to type my response after viewing your comments and missed that..

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So yes, just to reaffirm what I said..this would definitely be above the small estate affidavit limits so you will have to go through a formal probate case..

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thanks

Barrister

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