How can my dad have died and his estate been transferred to another relative without my being told anything?  That was the question, in a nutshell, that a client asked because she was not getting any answers from the relative in question.

My initial suspicion was that something was wrong.  Notice to a decedent’s heirs – which always includes the decedent’s surviving children — is required in order to commence administration of a decedent’s estate, whether it is a court supervised probate administration or a private trust administration. 

Such notice is required to all beneficiaries and to all heirs.  Even disinherited heirs must be notified.  That way they can go to court to object if they believe that the will or the trust being administered is invalid or improperly being administered.   The most frequent objections involve allegations that the decedent lacked testamentary capacity to sign the documents or was subjected undue influence and acted under coercion.

However, notice is not required in a number of situations when the estate is neither subject to probate nor to trust administration.  Small estates (with assets collectively worth under $150,000 in combined gross value) – except a small estate with real estate appraised at more than $50,000 — is involved can be administered informally (without notice) using the so-called “Affidavit Procedure”.  Likewise, lifetime gifts before the decedent died do not require any notice.  Lastly financial accounts that name designated death beneficiaries or that pass to a surviving joint tenant also transfer without any notice:  Beneficiaries simply present the bank (or other financial institution) with the deceased account holder’s certified death certificate, the beneficiaries’ own identification documents (e.g., driver’s license) and complete the bank’s forms to claim the proceeds.

Fortunately, transferring title to real estate involves filing title documents with the county recorder’s office.  Here, investigation into the recorded chain of title to the decedent’s residence showed that my client’s father while alive had signed a deed transferring title to other family members.  The same deed also reserved a life estate to allow the decedent to live in the residence until his death.  The life estate protected both the father’s right to live in the home and his recipients’ right to obtain so-called “stepped up” income tax basis at the father’s death.

Accordingly, in my example, the father while alive had made a lifetime gift of the house and removed it from his estate prior to death.  None of which required any notice to my client. 

The decedent likely had a will disinheriting my client and likely named death beneficiaries on his bank accounts.  Any small estate he left (such as vehicles, possessions, and bank accounts) could have been claimed by his beneficiaries using a small estate affidavit in reliance upon the will.  Accordingly, no formal administration of the decedent’s estate would have been required, and so no notice was sent to surviving heirs.

Children are disinherited for a wide variety of reasons.  Sometimes it is because the child upset their parents or because some else — often another sibling or a step-parent — poisoned their parent’s goodwill in order to get a larger inheritance. 

When undue influence is detected while the parent is still alive, a conservatorship to protect the parent’s estate from being plundered or passing under an invalid will or trust may be an option.  A conservatorship may be preferable to waiting until after damages have occurred.  Conservatorships, however, have no guarantees, and are emotionally and financially expensive. 

When the wrongdoing goes uncorrected until after the decedent’s death, depending on the facts, the heirs (who believe they were cheated) may contest the decedent’s will or trust and/or sue those persons whom they allege wrongfully took their inheritance for damages.

The foregoing is not legal advice.  Anyone confronting any of the issues shouldconsult a qualified attorney before proceeding.