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N Cal Attorney
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Category: Estate Law
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Experience:  Since 1983
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Probate Lawyer

Customer Question

Probate Lawyer
Submitted: 4 months ago.
Category: Estate Law
Expert:  RobertJDFL replied 4 months ago.

Thank you for using Just Answer. I look forward to assisting you.

What is your legal question, please?

Customer: replied 4 months ago.
Hello, Im hoping someone can answer me. My ex husband passed a month ago leaving about 60k in his checking account with our minor child as the beneficiary. I went to the bank the week he passed they told me i needed a form 13100 affidavit, the child present with me and birth certificate. Today i went to the bank (a different branch) they said i need to go to court and get paperwork stating that they can release the funds to me. I am confused as to why I need to go to court to get papers that i can have my minor childs funds.
Expert:  RobertJDFL replied 4 months ago.

Thank you for your reply.

You can use Form 13100 to transfer the money to you as guardian of your child pursuant to California Probate Code Section 13051, but there are certain conditions that must be met under California law.

First, at least 40 days must have passed since your ex died.

Second, there must not be any probate proceedings going on of your ex-husband's estate OR the personal representative of the estate has consented to the transfer of the property.

Third, the current fair market value of all of a decedent's property, both real and personal, with the exception of homestead, cannot exceed $150,000. If there is real property in the estate, an inventory and appraisal of said property must be attached to the form.

If all of those conditions are met then you can use this form, have it notarized, and present it to the bank with the child present and their birth certificate.

Did you need clarification or additional information about my answer? If so, please reply, I'm happy to assist further. Otherwise, please remember to leave a positive rating for me by clicking on the stars,as experts are not employees of this site and we are only paid if you leave a positive rating. Thank you!

Customer: replied 4 months ago.
These are exactly what I did today and the bank still says they want something from the court they didn't say exactly what they want. They just said something that shows they can transfer the funds to me.
Customer: replied 4 months ago.
1. 41 days have passed.
2. My ex husband has nothing else. No property nothing except the money in question 6k
3. I have the form 13100 notorized.
4. Went in with the minor plus birth certificateThey still said they want something from court.
Expert:  RobertJDFL replied 4 months ago.

Thank you for your reply. The whole point of the affidavit is so that you can avoid the formal probate procedure. Small estate affidavits like this are commonly used in California and other states, but many banks and other financial institutions may not be familiar and insist that an executor be appointed. That is NOT necessary. I'm looking right now for the statutes under the probate code you can show the bank - I would suggest going in and if they still won't accept it, ask them to contact someone in their legal department who is familiar with California law regarding small estate inheritance.

Expert:  RobertJDFL replied 4 months ago.

You can show them this from the California Courts which explains the small estate procedure:

http://www.courts.ca.gov/10440.htm

Section 13051 of the California Probate Code:

13051. For the purposes of this part: (a) The guardian or conservator of the estate of a person entitled to any of the decedent's property may act on behalf of the person without authorization or approval of the court in which the guardianship or conservatorship proceeding is pending. (b) The trustee of a trust may act on behalf of the trust. In the case of a trust that is subject to continuing jurisdiction of the court pursuant to Chapter 4 (commencing with Section 17300) of Part 5 of Division 9, the trustee may act on behalf of the trust without the need to obtain approval of the court. (c) If the decedent's will authorizes a custodian under the Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act of any state to receive a devise to a beneficiary, the custodian may act on behalf of the beneficiary until such time as the custodianship terminates. (d) A sister state personal representative may act on behalf of the beneficiaries as provided in Chapter 3 (commencing with Section 12570) of Part 13 of Division 7. (e) The attorney in fact authorized under a durable power of attorney may act on behalf of the beneficiary giving the power of attorney.

Here is the relevant section of the California Probate Code regarding property transfer:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=13001-14000&file=13100-13116

Customer: replied 4 months ago.
Thanks. I'll do that and get back.
Expert:  RobertJDFL replied 4 months ago.

Sections 13100-13104 specifically describe the use of the affidavit and requirements.

And take note of Section 13105:

13105. (a) If the requirements of Sections 13100 to 13104, inclusive, are satisfied: (1) The person or persons executing the affidavit or declaration as successor of the decedent are entitled to have the property described in the affidavit or declaration paid, delivered, or transferred to them. (2) A transfer agent of a security described in the affidavit or declaration shall change the registered ownership on the books of the corporation from the decedent to the person or persons executing the affidavit or declaration as successor of the decedent. (b) If the holder of the decedent's property refuses to pay, deliver, or transfer any personal property or evidence thereof to the successor of the decedent within a reasonable time, the successor may recover the property or compel its payment, delivery, or transfer in an action brought for that purpose against the holder of the property. If an action is brought against the holder under this section, the court shall award reasonable attorney's fees to the person or persons bringing the action if the court finds that the holder of the decedent's property acted unreasonably in refusing to pay, deliver, or transfer the property to them as required by subdivision (a).

In other words, subsection b says they can be compelled by a court to order release of the assets, and you can be awarded reasonable attorney fees for having to go to court, if they don't comply.

Customer: replied 4 months ago.
Hello again. I went back to the bank. A different branch and they said I would have been fine with all these had it not involve a minor. They said I need to go to court and be appointed the legal guardian of the money. I don't know what to do now.
Expert:  RobertJDFL replied 4 months ago.

I believe you are entitled as his legal guardian to take possession. Are you using this form or similar? Under #8, the second box should be checked off. It actually says "The affiant is authorized under Section 13051 of the California Probate Code to act on behalf of the successor of the decent (your son).... Now look at Probate Code Section 13051:

"13051. For the purposes of this part: (a) The guardian or conservator of the estate of a person entitled to any of the decedent's property may act on behalf of the person without authorization or approval of the court in which the guardianship or conservatorship proceeding is pending. (b) The trustee of a trust may act on behalf of the trust. In the case of a trust that is subject to continuing jurisdiction of the court pursuant to Chapter 4 (commencing with Section 17300) of Part 5 of Division 9, the trustee may act on behalf of the trust without the need to obtain approval of the court. (c) If the decedent's will authorizes a custodian under the Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act of any state to receive a devise to a beneficiary, the custodian may act on behalf of the beneficiary until such time as the custodianship terminates. (d) A sister state personal representative may act on behalf of the beneficiaries as provided in Chapter 3 (commencing with Section 12570) of Part 13 of Division 7. (e) The attorney in fact authorized under a durable power of attorney may act on behalf of the beneficiary giving the power of attorney."

Probate Code Section 13006 states:


13006. "Successor of the decedent" means:
" (a) If the decedent died leaving a will, the sole beneficiary or
all of the beneficiaries who succeeded to a particular item of
property of the decedent under the decedent's will. For the purposes
of this part, a trust is a beneficiary under the decedent's will if
the trust succeeds to the particular item of property under the
decedent's will.
(b) If the decedent died without a will, the sole person or all of
the persons who succeeded to the particular item of property of the
decedent under Sections 6401 and 6402 or, if the law of a sister
state or foreign nation governs succession to the particular item of
property, under the law of the sister state or foreign nation."While I feel like this grants you authority to act on behalf of your son without the need to go to court, I do not want to mislead you.I will opt out and put the question back up for other experts. Perhaps there is an expert on California probate who will see the question and can give you a definitive answer.Please don't reply back to me, as the site will automatically send the question back to me to answer, delaying other experts from seeing the question. You'll be notified when you receive a reply. My apologies for not being a bigger help. I am sure someone will be with your shortly.
Expert:  N Cal Attorney replied 4 months ago.

New Expert here.

Assuming that you already tried to present the bank with a notarized small estate affidavit, what exactly did the bank say when it refused to accept the affidavit.

How was the account titled? Does it say specifically "transfer on death" to your child?

Did the decedent own any real property?

Customer: replied 4 months ago.
Thanks. The deceased has no real estate. Nothing at all. Just this money in the account. He left no will. He name our minor child the beneficiary. The bank stated since the money is above $5,000. And the beneficiary is a minor I need to go to court and be appointed the guardian of the money. The notorized affidavit is only if the deceased didn't name a beneficiary
Expert:  N Cal Attorney replied 4 months ago.

I think the bank is objecting based on

Probate Code

3410. (a) This article applies to both of the following cases:

(1) Where the minor has a guardian of the estate and the sole asset of the guardianship estate is money.

(2) Where the minor has no guardian of the estate and there is money belonging to the minor.

(b) This article does not apply to, and there shall be excluded in computing "money belonging to the minor" for the purpose of this article, all of the following:

(1) Money or property which is or will be held as "custodial property" pursuant to the California Uniform Transfers to Minors Act, Part 9 (commencing with Section 3900).

(2) Any money or property subject to court order pursuant to subdivision (c) of Section 3602 or Article 2 (commencing with Section 3610) of Chapter 4. 3411.

(a) A parent of a minor entitled to custody of the minor, the guardian of the estate of the minor, or the person holding the money belonging to the minor may file a petition requesting that the court make an order under this article.

(b) The petition shall be filed in the superior court of:

(1) The county where the minor resides if the minor has no guardian of the estate.

(2) The county having jurisdiction of the guardianship estate if the minor has a guardian of the estate.

The bank wants you file a petition like the one shown at

https://books.google.com/books?id=nJCSCwAAQBAJ&pg=PA68&lpg=PA68&dq=probate+code+3411+petition&source=bl&ots=tqiq6fY5kN&sig=SHQxAFWl-MbWF47f1x0rbTkWWio&hl=en&sa=X&ved=0ahUKEwisw9bPte3NAhVV92MKHa5zA0IQ6AEIPzAF#v=onepage&q=probate%20code%203411%20petition&f=false

which also has a form Order you can use. It would be captioned as In re the Matter of [name of child], a Minor.

Your County Law Library should have the current edition of that book, and other legal practice books with similar forms.

I hope this information is helpful.