The Kenwood Press|
Elder Law for Noveber15, 2008
If you think this is too hard to do yourself, consider how hard it will be for your children to deal with after you pass away. Take a few minutes to get organized.
Len & Rosie
Dear Len & Rosie,
My mother was the executor of her parents' estate, which consisted of little other than their personal possessions. Before she could get all of the items distributed, her parents photo albums were taken out of her parents' home by her sister, and she has not been able to get them back to distribute the photos among the entire family. What would be the best legal action? We have been given a variety of advice including hiring a lawyer to write a letter demanding the return of the photos, reporting the theft to the police, and going through probate. What should we do?
The personal property of a decedent is usually dealt with in one of three ways. The best way is for the heirs to work it out informally. That's what most families do. Alternatively, the child who shows up at mom and dad's home first with the biggest truck winds up with everything. If the other children disagree, they can either live with it or go with the third alternative and take their claims to court.
If your mother wants to get her share of those photographs, she has some obstacles to overcome. First of all, and this may come as a surprise to you, your mother is not her parents' executor. Executors are nominated in wills, but are appointed by the court. Your mother isn't the executor unless the surviving spouse's will was admitted to probate and she was granted "letters testamentary" by the probate court judge. When the estate is worth less than $100,000, the heirs are allowed to collect the estate themselves using small estate declarations or, for untitled personal property, just dividing it up amongst themselves. Right now, your mother's authority to dispose of her parents' assets is no greater than that of her sister.
Yes your mother can file for probate and seek to be appointed as the executor of the estate. Then she could file a petition under California Probate Code section 850 demanding a return of the photographs and other items your aunt may have taken. But good luck on finding a lawyer to do the work. Probate fees are paid from the estate, and if the only assets in the estate are personal possessions, how will the lawyers get paid? And if the lawyer's won't be paid, why would one be willing to take on your case.
Your mother could hire a lawyer and sue her sister in civil court for your mother's share of the photographs. We can guarantee to you that she will spend more money in legal fees than it's worth. There are two viable alternatives. One is for your mother and the other heirs to sue your aunt in small claims court for up to $7,500. A small claims court judge may award only monetary damages, but the threat of a $7,500 judgment is good incentive to settle. The statute of limitations for recovering personal property belonging to an estate is two years after the date of death, so your mother should act soon.
A better solution is to remember that we live in a technological age of computer scanners and color laser printers. With a little bit of cooperation, it wouldn't be that difficult to inexpensively reproduce your grandparents' photographs for the entire family to enjoy.