Elderlaw Advocates May 15, 2019
Len Tillem & Rosie McNichol
Dear Len & Rosie,
My cousin passed away just before Thanksgiving. She had absolutely no money and a $21,000 loan on her mobile home. I am the executor listed in the will. Can I give the mobile home to the bank that carried the loan? She also received a check from the state for the renterís tax credit. Of course, it came after her death. Is there anything I can do to cash this check? Can I ask the state to re-draw the check in my name? There is no money for the space rent and I would like to use the money from the check to pay the space rent.
First of all, keep in mind that you donít have to take the job. When a person makes a will, anybody could be nominated as executor, but the nominee is under no obligation to act.
Also, youíre not really the executor. Not yet. To become executor, your cousinís will has to be filed for probate in the Superior Court. And this may be completely unnecessary.
Look at your cousinís assets. If her estate, which consists of everything in her name alone, without any joint owners or beneficiaries, is worth less than $150,000, gross, then her beneficiaries may collect her estate outside of the probate courts. Keep in mind that the value of her mobile home and her automobile donít count against this limit.
At least 40 days after your cousinís death, the beneficiaries named in her will may each sign Small Estate Affidavits under California Probate Code section 13101 to collect the estate. If the mobile home has any equity, they can hire a real estate agent to get it on the market, and sign the Affidavit when the home is in escrow.
The only reason to tell the lender to take over the mobile home is if there isnít any equity in it at all, which isnít so likely.
As for your cousinís tax refund, this may be easy. If she still has a bank account in her name, anyone may write ďfor deposit onlyĒ on the back of the check and deposit it into her account. Then, the beneficiaries may collect the account using another Small Estate Affidavit. This is a lot easier than trying to get the check reissued.
All in all, this isnít going to be so complicated. What you should do is collect your cousinís certificate of death, the mobile homeís registration issued by the California Department of Housing, and her account statements. Then, you and the heirs can sort it out with a trusts and estates attorney without much difficulty.
Len & Rosie