Q: Is probate the proper venue to force return of property? And what are my options?
My father is deceased. Going on 3 years now!! Prior to passing away he lived in in a shared rental house with his caretaker. Myself and my siblings have requested she gather his things and one of us will pick them up. We have gotten ZERO from her. It’s not money or valuable to anyone other than us. Our father was a writer. It’s his writing, pictures and personal affects. It’s a 1.5 hr drive and I have made it 3 times, due to no telephonic contact or response.
A: You should talk to the executor of the estate. If that is you, then you need to talk to a probate lawyer. He might be able to get a court order compelling the caretaker to cough up. If you have access to the property where his belongings were kept, you could go in and gather them up yourself. Three years is a long time to let this slide. How do you know his stuff is still there?
A:
Dear Whittier California:
You question peaked my interest, as you are asking how do you obtain a decedent's property with primarily sentimental value, and nominal monetary value.
I think the answer is to use a small estate affidavit under Probate Code section 13100. An example of the affidavit can be found at the Sacramento County Law Library's web site: https://saclaw.org/wp-content/uploads/2015/01/form-affidavit-for-collection-of-personal-property.pdf.
Now, once the affidavit is presented to the caretaker (or whomever holds custody of the property), they must turn the property over. If they do not, you can get a court order Probate Code section 13205(b). If the court finds the custodian acted unreasonably, the court can require the custodian to pay your attorney's fees and costs in obtaining an order. Which might be a motivating factor is this is pointed out to the custodian in a letter covering the affidavit.
Mr. Merrick is correct that the three year delay may be an issue, and the caretaker may claim that you made no prior effort to claim the property and she disposed of it. Of course, if you made the requests in writing and kept copies you can use that against the caretaker.
You may wish to discuss this with a probate attorney before proceeding. You can start by contacting your local county bar association. Most county bar associations maintain a lawyer referral service, where for a small or no fee you receive a consultation of thirty minutes to an hour. (In my home county, it is $35.00 for a thirty minute consultation.)
Best of luck.
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