I'm probating an estate with no will. There are two beneficiaries and one is a minor. The minor's father is the decedent, but mother is still alive and is taking care of the minor. When it is time for distribution of property (which includes proceeds from the sale of a house), how do I distribute the assets to the minor? Is it necessary the mother is named guardian?
Update in response to Brad's post: Thanks Brad for your answer. I believe California does allow pro pers in probate. I have had no problems thus far, but just have questions such as the above to make sure I'm doing it correctly. As to retaining a lawyer, I'm hoping to avoid it to save the beneficiaries some money.
Does the Uniform Transfers to Minor Act indicate that I must name a custodian? Even though the custodian would be the minor's mother?
The best way to select a custodian is to request the court to approve the custodian you select via a petition or motion. This way, you cannot be held responsible for selecting a custodian who mishandles the minors' funds. In the past, I solved this problem by presenting a basic trust for court approval (dissolves at age 18), and naming the trustee as the custodian.
This way the probate estate was able to close, and the funds were held in a trust which explained how they may, or may not, be used. For example, the funds may not generally be used for the minors support in a custodianship; mom has a duty to support the children. However, the trust may provide for "child support" that the deceased may have paid to mom if he was alive. The child support acts like a creditor's claim by mom against the estate, and is paid before the childrens shares are divided. I found the trust solved all these problems, and the court agreed.
Follow the Uniform Transfers to Minors Act. Here--> http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=72949828817+0+0+0&WAISaction=retrieve
You say you are probating, which means a court appointed you personal representative of the estate. If this is the case, California Law requires you to be represented by a lawyer in court, no pro pers in a probate.
If you are not in court appointed, then you are not probating. You may be a trustee. If that is the case then you follow the terms of the trust and California trustee duties as set forth in the probate code and cases.
In either event, there are pitfalls for which you can become liable from you personal assets, thus, you should use a lawyer to assist you; fees paid by the estate not you.
Although I have seen courts allow pro-per executors to appear in court representing the interest of beneficiaries, it is not allowed in California. A pro per may file a petition for probate pro-per, but the court appointed executor must have an attorney, or be an attorney. The exception is if the executor is defending his/her own actions or transaction. An executor representing the interest of a beneficiary is practicing law without a license.
See or google J.W. v. Superior Court, 17 Cal. App. 4th 958
Quote from the Appellate Judges:
Commentators on this issue also have rejected the theory that a nonattorney guardian may act as attorney for the ward. Witkin observes, "The necessity of employment of an attorney by a guardian ad litem who is not himself a lawyer is obvious, . . ." (4 Witkin, Cal. Procedure, supra, Pleading, § 65, p. 103, quoted with approval in Torres v. Friedman, supra, 169 Cal.App.3d 880, 887, original italics.) Brown and Weil advise attorneys seeking to be relieved as counsel to warn the client to hire replacement counsel where the client is a corporation or "a guardian ad litem, executor, conservator or other representative (since they may not represent themselves in pro per unless they are lawyers.)" (Brown & Weil, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1992) Law & Motion, P 9:396; see also L. A. Super. Ct., Law and Discovery Policy Manual, par. 238.)
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See Mossanen v. Monfared, 77 Cal. App. 4th 1402
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Since the passage of the State Bar Act in 1927, it has been well settled that persons may represent their own interests in legal proceedings but may not " ' "practice law [for another] in this State unless [they are] active member[s] of the state bar." ' " ( J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965 [22 Cal.Rptr.2d 527], quoting Abar v. Rogers (1981) 124 Cal.App.3d 862, 865 [177 Cal.Rptr. 655], and Bus. & Prof. Code, § 6125.) Prohibiting unlicensed practice is within the "police power [of the state] and is designed to assure the competency of those performing [legal] services." ( J.W. v. Superior Court, supra, 17 Cal.App.4th at p. 969.) In line with that prohibition, courts have held, among other examples, that a nonattorney mother cannot represent her minor son in propria persona in a paternity action (ibid.), a juvenile cannot have his nonlawyer father assist in his defense or represent him ( In re Gordon J. (1980) 108 Cal.App.3d 907, 914 [166 Cal.Rptr. 809, 11 A.L.R.4th 711]), and a nonlawyer representing his mother's estate as conservator and executor cannot appear in propria persona on behalf of the estate ( City of Downey v. Johnson (1968) 263 Cal.App.2d 775, 779 [69 Cal.Rptr. 830]).
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