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Dad passed in CA, thinking of filing small estate affidavit. His debts exceed his estate, should I do it or do probate?

Martinez, CA |

He was a disabled vet, had no income, lived in public housing. Items sold to cover funeral and each child took minor items that were sentimental along with family pictures. After selling chattel, covering the funeral, he'll have 4K to his estate. He owes about 20K for sure. For another 74K we have a 2011 1099-C for cancellation of debt from two HELOCs related to his condo that was foreclosed on. Can they still come after his estate? His father died 4 months before and my dad was a beneficiary but not all money from the living trust has been distributed since the house has not sold. Trust has a restrictions clause against beneficiary creditors and per stirpes definition that whenever assets are to be distributed, they go to his children and his grandchildren if that parent has died.

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Attorney answers 4


I would strongly urge you to contact an attorney in your jurisdiction to assist you as there are several pieces to this puzzle which cannot be ascertained online. As just one example, did your grandfather's trust continue for the lifetime of your father or was it supposed to be distributed to him immediately? Having an attorney involved could help you determine the creditors' rights and, perhaps, preserve the assets in your grandfather's trust for you and your other family members. Good luck to you.

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I agree with Attorney Pankowski. You need to review all of your facts with a probate attorney. It may be possible to shelter ALL of your father's and grandfather's assets from creditors. In every State that I know of, administrative costs take precedence over creditor claims. There are also often exemptions and allowances that would permit you to shelter even more. There is not that much left in your father's estate that you would need to cover, so it makes sense to look into this further.

James Frederick

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Agree with the other two attorneys. There is information missing that could be crucial to a response. Recommend you contact an experienced Trust Administration attorney.

No legal representation exists by virtue of this answer. It is recommended that you contact an attorney directly for a more complete response.


I agree with all the other attorneys in saying we need more information. I had a similar situation with a client in Richmond. A lot of debts and very little in the way of assets. The probate code provides a strict order for payment of expenses and creditors. The benefit of a court administered probate is that it forecloses all claims against the estate so you never have to worry about whether a creditor can come out of the woodwork and try to attach to your beneficial interest.

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