Legal Question in Wills and Trusts in California

Probate

I'm the sole beneficiary in a will & another person was named executor. The estate consists of 100 paintings done by the decease. I had 2 profession appraisals done both stating the value $2000., they said because the artist is not listed in Reference books, Gallerys, the painintgs have little street value. There is No Real Estate involved. And there are no outstanding debts.

The executor, a street artist herself filed the will with San Francisco Court stating a value of $150,000 & she was assigned executor. The executor said she will sell all paintings & just give me cash after her expenses are paid. The paintings are in my possession. The exec. has a friend who is a lawyer helping her. The court also assigned a probate referee; they will not speak to me only the exec. or her lawyer.

I assumed everything would be done outside probate. I paid for the funeral out of my pocket.

The exec. has told me she will get the paintings, sell them, and if I don't like it to sue her. She's on welfare, she has no money anyway.

Do I have to give the paintings to the executor and never see them?

What if I don't give her the paintings, what would happen?

What other options do I have?

The paintings are of sentimental value to me.


Asked on 4/29/09, 9:04 am

1 Answer from Attorneys
Phunphilas Viravan Law Offices of Phunphilas Viravan

Re: Probate

If the court has not granted the petition to appoint that other person as executor, then you should object. The fact that she is on welfare can disqualify her based on inability to deal with her own finances and not being bondable. You should then file a competing petition to be appointed administrator.

The Executor does have a duty to marshall (get) the Estate assets. If you don't turn over the assets, the Executor would have to sue you to get them. The probate referee's appraisal of the paintings would be controlling. What your appraisers set the value at or what the Executor's own assessment of value was do not matter. The Executor's statutory fees would be based on a percentage of the probate referee's appraised value, or what actual sale of the assets yielded, if properly marketed or auctioned.

If you want to keep the paintings for sentimental reasons, as sole beneficiary, you should be able to elect to take the assets "in kind" (take the thing itself), but you'll have to come up with the statutory fees to pay the Executor and her attorney, plus administration expenses. If the Executor is not willing to work with you on this, file a petition for instructions with the court to ask for this relief.

If the paintings are worth $2,000, like your appraisers indicated, then the statutory fees are very small (4% of 1st $100k + 3% of next $100k), for each. If the paintings are worth $150k, like the executor indicated, then perhaps you should let her sell some to cover the expenses and keep the rest in kind.

Also, you should make a creditor's claim for the funeral expenses.

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Answered on 4/29/09, 7:59 pm


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