Oxnard, CA asked in Probate for California

Q: Regarding an insurance policy

Insurance Company recently discovered a small policy of Mother who passed in 2001. Father (husband) passed a few years after Mom. Five siblings survive. There's no will, no estate and we gave the insurance company the death certificates. What is needed to get this small amount to the siblings?

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2 Lawyer Answers
Ben F Meek III
Ben F Meek III
PREMIUM
Answered
  • Probate Lawyer
  • Oklahoma City, OK

A: Most states have what are called "small estate affidavits" or "affidavits of heirship", which allow the heirs to swear under penalties of perjury to certain facts, such as: that your mom has died; that she left no will; that no probate proceeding has been started for her estate; who all of her heirs are and their addresses; and that all of her creditors have been paid. There may be different requirements but these are typical.

If you can prepare and sign such an affidavit, the insurance company may pay the funds to the heirs. Talk to the insurance company about whether they would accept such a document in lieu of conducting a probate proceeding and whether they require a particular form of such an affidavit. Good luck.

Nina Whitehurst agrees with this answer

James Edward Berge
James Edward Berge
Answered
  • Estate Planning Lawyer
  • San Jose, CA
  • Licensed in California

A: Since mom died without a Will survived by her husband and her 5 children, the insurance company will only pay the death benefits to her intestate heirs which will be her husband and perhaps her 5 children as provided by state law. Since her husband has since passed, a probate (or at least a small estate affidavit) will be need for his estate since he too will have either died (testate) leaving a Will or (intestate) having died without a Will. Ben might be right that the kids can collect the policy proceeds using a small estate affidavit, but only after the insurance company verifies that dad died without a Will survived by those same 5 children and no probate would otherwise be required. If dad had a Will, the beneficiaries under that Will would be entitled to the insurance proceeds. If one of dad's children died before dad survived by then living children, those children would also be entitled to a share of the proceeds. As you can tell, it can get quite complicated depending on the fact pattern. If you need help, contact a probate attorney.

Nina Whitehurst agrees with this answer

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