Trusts & Estates Law/probate affidavit

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Question
Hello Ms Brewer,

I hope that your time off was pleasant.  This question is rather specific: there is a form used by the California DMV in connection with the sale of a vehicle by a representative of an estate called:
AFFIDAVIT FOR TRANSFER WITHOUT PROBATE CALIFORNIA TITLED VEHICLE OR VESSELS ONLY
(link to form: http://www.dmv.ca.gov/forms/reg/reg5.pdf

One of the attestations is "that there are no creditors of the deceased whose claims remain unsatisfied."  There is no reference to any law or regulation.  I take this to refer to the absence of claims on the vehicle as opposed to the entirety of the deceased estate. Is that how you see it?  Thanks so much.

Leland

Answer
Thanks for your question.

Sorry to disappoint you, but this refers to all of the decedent's creditors, not just claims against the vehicle.  Take a look at California probate code section 13109, which is referenced in the affidavit:  "A person to whom payment, delivery, or transfer of the decedent's property is made under this chapter is personally liable, to the extent provided in Section 13112, for the unsecured debts of the decedent. Any such debt may be enforced against the person in the same manner as it could have been enforced against the decedent if the decedent had not died."

When you sign the affidavit that you're entitled to the vehicle, you're also swearing that the decedent had no "unsatisfied debts", whether those debts are mortgage payments, medical bills, credit card bills, utility bills, etc.  

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Janet Brewer

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BE CAREFUL about taking legal advice from non-lawyers.

I am a licensed attorney in California. I am available to answer questions about probating estates, preparing wills and trusts, administering estates and trusts, forming family limited partnerships and limited liability companies, and establishing a wide variety of estate and gift tax-sensitive trusts (charitable trusts, children's trusts, irrevocable life insurance trusts, etc.).

I can also answer questions regarding the preparation of estate tax returns (Form 706) in taxable estates. Please note that I do not prepare trust income tax returns and cannot provide you with any information about that type of return.

Please note: I am only able to practice law in the State of California. I cannot answer specific questions about other states' laws; I can only provide some "general" information that may or may not apply to your situation.

Experience

I have practiced California estate, gift-planning, and probate law exclusively since 1991. I am certified as a specialist in estate planning and probate law by the California State Bar Board of Legal Specialization (there are less than 125 such specialists practicing in Santa Clara County and fewer than 7,000 practicing in California - out of over 170,000 lawyers statewide).

I have served as an Instructor in the CFP (certificate in financial planning) program at University of California Santa Cruz, teaching the estate planning segment.

Organizations
Silicon Valley Bar Association
Wealth Counsel
Wealth Advisors' Forum
Executive Committee Member, Solo and Small Firm Section of the California State Bar (appointed to a 3 year term by the California State Bar Board of Governors)

Education/Credentials
I received my law degree (J.D.) from University of Denver Law School in 1975. I was admitted to the Colorado Bar in 1975 and to the California Bar in 1977 (NOTE: although I am a member of the Colorado Bar, I am on INACTIVE status there). I earned an M.B.A. in 1982, and I earned a Masters Degree in Taxation Law (LLM) at Golden Gate University Law School in 2010 (with honors).

More at:
http://www.calprobate.com

Awards and Honors
2007, 2008, 2009, 2010, 2011, & 2012 - chosen as a "SuperLawyer" - one of the top 5% of Northern California lawyers practicing in the estate planning and probate area (www.superlawyers.com). Avvo Rating of 10.0/10.0

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