Chino, CA asked in Banking, Estate Planning and Elder Law for California

Q: Caretaker had affidavit. Does that give her rights to my moms bank accounts and safe deposit box and jewels etc?

Im barely thinking about this stuff now. I wonder why the bank stuff never was mentioned among other things? The probate case only included houses but she owned other things of value too that were not mentioned and I don't know why I wasn't thinking about it then until now that few years have past. I still can't look at pictures I guess I'm still struggling with the reality that she's really gone. Im trying to remember more things little by little I woder if its too late to salvage anything or look for justice. I really feel that the caretaker woman helped herself to those bank accounts and so many other things like mom's antique jewelry etc. The caretaker had an affidavit of some sort but just because she had an affidavit does that grant her the right to help herself to everything inside the house and bank accounts? What is an affidavit exactly?

1 Lawyer Answer

Greg Freeze

Answered
  • Estate Planning Lawyer
  • Port Townsend, WA
  • Licensed in California

A: You may be referring to what attorneys often call a Small Estate Affidavit ("SEA"). If an SEA is made fraudulently, there can be consequences as set out in Cal. Prob. Code § 13110. But you need to hurry to a local attorney because you may have already "blown" the statute of limitations.

The statute of limitations is three years. "An action to impose liability under this section is forever barred three years after the affidavit or declaration is presented under this chapter to the holder of the decedent's property, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason." Prob. Code, § 13110.

An SEA is a method of getting a decedent's property without the oversight of a probate. It applies when "decedent's real and personal property in this state does not exceed one hundred fifty thousand dollars...." Prob. Code, § 13100.

You have an obstacle. If your suspicions are correct, you might have trouble finding the caretaker or getting assets back if you were to win your case in court. The caretaker may be judgment proof in that, that statute might give you "three times the fair market value of the property" (Prob. Code, § 13110(b)), but the caretaker might not have anything to get back. So once again, hurry to a local attorney.

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