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Elderlaw: 11/15/2008

Elder Law for Noveber15, 2008



Dear Readers,

We would like to share with you something that we share with our clients. It’s really important, our clients like it, and we think that your family can benefit from it as well. You may have seen this before. We print it year after year. Consider it as a gentle reminder to get yourself organized. One of the most tedious tasks in administering a trust or an estate is finding the decedent’s estate planning documents and asset information. Frequently, children or even spouses have no idea where their parents or spouse kept these important documents.

After you pass away, the last thing you should want is for your loved ones to have to search through your belongings in a morbid scavenger hunt to find your will, trust, stock certificates, or other important papers. They shouldn’t have to lift up your mattress to look for your safe deposit box key. They shouldn’t have to waste a month waiting for new account statements to come in the mail so they can learn where you invested your savings.

To avoid these difficulties, you should organize your personal and financial data. This is where the list comes in. Collect the information described in this list and give a copy to your children or close relatives, or keep it somewhere safe and let your family know where to find it. In case something happens to you, the List of Eleven is one of the best ways to ensure that your relatives can find all your vital records.

The List of Eleven

  1. The name of the bank where you have your safe deposit box, its number, and the location of your key.

  2. The account numbers for all of your insurance policies, health, life, auto, home, burial, etc., and the names, addresses, and telephone numbers of your insurance agents.

  3. A list of your stocks, bonds, mutual funds, and the name and address of your broker.

  4. The names of the banks or savings and loans for each of your accounts, and the account numbers, or even copies of account statements.

  5. The location of your cemetery plot or mausoleum niche.

  6. The location of your will or trust and the name of your attorney.

  7. Your credit card numbers.

  8. Your Social Security Number.

  9. The name and address of your mortgage holder, the account number, and the amount of the outstanding debt.

  10. The name and address of your accountant, and where your past income tax returns are located.

  11. The type of memorial or funeral service you want.

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?

Laura

Dear Laura,

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.


Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 996-4505, or on the Internet at lentillem.com. Len also answers legal questions each weekday on The Len Tillem Show, a podcast available via iTunes, Facebook, www.spreaker.com/user/lentillem and lentillem.com.
Email: lentillem@kenwoodpress.com

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