Elder Law - Len and Rosie


The case of the forgotten annuity

Dear Len & Rosie: I am a senior gent whose lady friend died almost a year ago without a will. We had lived together in California for 18 years. Everything she had was in joint accounts with me. But I later discovered an annuity she had no doubt forgotten about.

The beneficiaries of the annuity have been dead for years. She has no living relatives except for a couple of half-nephews in Nebraska she has not seen in over 30 years.

Since I was closest to her and I took care her, could I be appointed executor so I can get the annuity? I have no idea what it’s worth. - Tom

Dear Tom: If the annuity is worth less than $150,000, you won’t need to file for probate. It can pass to your friend’s heirs by means of a Small Estate Declaration made under California Probate Code section 13101. If it’s worth more than that, you can hire an attorney and file for probate. Probate can be opened by a relative, a creditor, or anyone else who has an interest in a person’s estate. The court can appoint you as the administrator of your friend’s estate. You can’t be the executor because your friend did not make a will naming you as executor, but in practice being an administrator or an executor is exactly the same. Just understand that you are at the bottom of the priority list of potential administrators. If anyone actually related to your friend wants to be the administrator, the court will likely appoint him or her instead of you.

As administrator, you can contact the insurance company that sold the annuity. The annuity may belong to your friend’s estate, or it may belong to the estates of one or more of her designated beneficiaries. The insurance company can tell you. However, even if the annuity belongs to your friend’s probate estate, you will not get the money because you are not one of her heirs. A person who dies without a will dies intestate, and his or her property is distributed in accordance with the laws of “intestate succession”.

The chain of intestate succession starts with spouses (or domestic partners registered with the California Secretary of State) and children, then to parents, then brothers and sisters, nieces and nephews, etc. “Boyfriends” are not included, and since California does not recognize common law marriages, you cannot inherit the estate as her husband. Those two half-nephews in Nebraska will probably get everything in the estate. Mind you, your friend’s estate does not include the accounts you held with her in joint tenancy. Those belong to you.

The best you can hope for in a probate is to be paid back anything she owed you upon her death and the statutory executor’s fee set by the legislature. Your problems could have been avoided if your friend had made a will, but it’s too late to do that now.

For those readers without wills, you can make one for free. The California State Bar Association provides a free form will, the California Statutory Form Will, on its webpage, Calbar.ca.gov. Start with the link there for “Public Services” and you’ll see a link titled “Making a Simple Will”. Or, send us an email through Lentillem.com and we’ll email it to you.- Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway in Sonoma, at 996.4505, or Lentillem.com. Len also answers legal questions each weekday, 3 to 4 p.m., on Newstalk 901 AM.

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