Probate case was closed. But reopened by court order for afterfound property. Does this mean the whole case if reopened?

Asked over 2 years ago - Pacifica, CA

My children were tricked into signing off the house which their father and his girlfriend (who was the administrator) lived together by tenants in common. Each owned 1/2 of the property. The case was closed but is now reopened and is revealing afterfound property which is the land adjacent to the house. The girlfiend who was the administrator has been discharged. Does this mean the whole case is reopened including the house since she did not include all of the property? There is a Court Order for the Afterfound Property to be distributed to my children. We have her lawyers papers that were filed about this but they are hard to understand.

Thank you

Attorney answers (3)

  1. James Buchan Creighton

    Contributor Level 7


    Lawyer agrees

    Answered . I am sorry that this case has been so difficult for you and your children. First, the loss of their father is sad his lady friend is trying to keep property to which they are entitled away from them.

    Based on your question, which is very familiar to another question I just answered, I answer as follows:

    The whole case does not need to be re-opened; the only issue is the proper distribution of the after-acquired property.

    I gather that your former husband died INTESTATE (i.e., without a valid Last Will & Testament in place) since you wrote that the girlfriend is the Administrator, rather than the Executor, which would be her title if your former husband had died with a valid Last Will &Testament in place and he nominated her as his Executor. I also gather that she has been formally discharged by the court. (Note: the Personal Representative must formally ask the court to discharge her via a document that is separate from the Order of Final Distribution. If she didn't do this, then she hasn't been discharged.)

    Property attributed to a decedent's estate that are discovered after the order of final distribution must be distributed to the heirs at law of your former husband (assuming he died intestate) or to the intended beneficiaries named in his Last Will & Testament (if he had died with a valid Last will & Testament in place).

    Please review the Order of Final Distribution of your former husband's estate. Hopefully the Order includes an "omnibus" clause that requires any property discovered after the probate proceeding has been closed to be distributed to his heirs at law (e.g., his children) or to the residuary beneficiaries named under his Last Will & Testament (if he died testate). If this is the case, then the distribution of such property is to be made as provided in the order. See California Probate Code §11642(a). After-discovered property vests as of the date of the order for final distribution.

    If the Order of Final Distribution does not dispose of the after-discovered assets, the distribution of such property is made as follows (See Probate Code §11642(b)):

    If the personal representative has not been discharged, then the property is distributed as ordered by the court in response to a Petition for Instructions. See Probate Code §9611(a).

    If, as you wrote, the personal representative has been formally discharged, then Probate Code §12252 describes what must occur: If, after the personal representative has been discharged, subsequent administration of an estate is necessary because other property is discovered, the court must appoint as the personal representative the person who is entitled to appointment in the same order as is directed in relation to an original appointment, except that the person who served as personal representative at discharge has priority. In other words, the Court may decide to "re-appoint" your husband's girlfried as the Personal Representative for the sole purpose of distributing the property to your children. If she is the one responsible for not revealing the after--discovered property to the court, she could be liable for sanctions or other penalties and the Court may appoint someone else to distribute the property to your children. If one or more of your children is an adult then one of them could ask to be appointed. If none of your children is an adult, you might try to get the court to appoint you as the Administrator.

    Your children do need an attorney to assist them with this task. The attorney's fees could be paid in any number of ways (contingent, hourly, fixed fee) and the attorney might not require fees to be paid until after the property has been distributed to your children.

    I hope this helps.

    Disclaimer: Please note that the information in this blog post does not constitute legal advice, and should not be... more
  2. Richard Anthony Grain

    Contributor Level 9

    Answered . I would suggest you contact your local state bar and ask for a referral to a probate attorney who handles litigation and who will offer you half- or full-hour of preliminary advice on action you need to take.. In California, probate orders allow property found after the Order is filed to be distributed without the need for the probate to be reopened. What you seem to be saying is that the administrator has committed fraud against the estate regarding the house which would require the probate to be reopened. You need an experienced probate attorney to help you with this issue.

    This answer is not intended to provide you with specific legal advice regarding your situation, or to create any attorney-client privilege.

  3. James A Littlepage

    Contributor Level 12


    Lawyer agrees

    Answered . Assuming your children are adults, they (or you if they are not adults) should hire a competent probate attorney to determine the status of the probate and whether there may be a case against the former administrator for breach of fiduciary duty. It is not uncommon for property to be discovered after probate is closed, so this in itself is not a red flag. I am not familiar with California probate law, but in Colorado, reopening probate is a simple matter. The newly discovered property is distributed and the probate can be immediately closed again without revisiting the earlier distributions.

    Legal Disclaimer: James A. Littlepage is licensed to practice law in Colorado, and as such, his answers to Avvo... more

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