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Who can be a legal representative of a deceased person?


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#1 sjpark

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Posted 29 January 2013 - 03:38 PM

My grandmother passed away at the end of last year and now my family has received a letter from the Social Security Administration about the payments that are to be collected by the next of kin or legal representative.

I'm calling her my grandmother but she is actually a sister of my paternal grandmother. So my father is a nephew of her. She was never married and did not have a child of her own. Her closest relatives are my father and my uncle (my father's older brother).

The SSA tells me that nephews do not qualify as beneficiary and only legal representative can receive the payments. We are going to request the court to appoint a legal representative for my deceased grandmother but we do not know whether it should be my father or my uncle.

My uncle wants to be the legal representative as he lived with the deceased grandmother for over 30 years. The problem is that he does not speak English and he is disabled (cannot walk or drive) so it is difficult for him to go to the court. My father (or myself) will have to take him to the court and do the paperwork for him.

Is this something that the court will decide? But what if my grandmother had small estate? Would the legal representative will have to hire a lawyer?

#2 pg1067

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Posted 30 January 2013 - 07:34 AM

My grandmother passed away at the end of last year and now my family has received a letter from the Social Security Administration about the payments that are to be collected by the next of kin or legal representative.


What payments are you talking about?


I'm calling her my grandmother but she is actually a sister of my paternal grandmother.


That makes her your great-aunt, not your grandmother.


Her closest relatives are my father and my uncle (my father's older brother).


I assume that means your paternal grandmother predeceased your great-aunt and that they had no other siblings.


We are going to request the court to appoint a legal representative for my deceased grandmother but we do not know whether it should be my father or my uncle.


I assume this means that one of you will be filing to probate the estate. The "legal representative" will not be the "legal representative for" your great-aunt. Rather, the "legal representative" will be the executor (or administrator or personal representative depending on the terminology used in the state in which your great-aunt resided) of the estate. As far as who "should" do it, there is no distinction in the abstract between two persons who have the same degree of relation to the deceased.


My uncle wants to be the legal representative as he lived with the deceased grandmother for over 30 years. The problem is that he does not speak English and he is disabled (cannot walk or drive) so it is difficult for him to go to the court. My father (or myself) will have to take him to the court and do the paperwork for him.


An inability to speak English is a negative (I assume your father is fluent). That he lived with your great-aunt isn't, by itself, particularly relevant. However, if, as a result of living with her, he has unique familiarity with her assets and records, that would work in his favor. As far as getting to court, I have served as the legal representative for three separate estates in the last six years and never once set foot in a courtroom in connection with any of them. Whether court appearances might be necessary for your great-aunt's estate depends on the particulars of her estate and the laws of the unidentified state where she lived.


Is this something that the court will decide?


If your father and your uncle both seek appointment as the personal representative of the estate, yes, the court will decide which of them to appoint.


But what if my grandmother had small estate?


I'm not sure what this question means, and "small" is obviously an ambiguous term. Some states have streamlined procedures for estates worth less than a certain amount. Since you didn't identify your great-aunt's state of residence, we obviously can't tell you anything about the law in that state.


Would the legal representative will have to hire a lawyer?


I've never heard of any state having a requirement for the personal representative to hire counsel. However, in my opinion, estate administration is generally not a good do-it-yourself project. And, if your non-English speaking uncle ends up being appointed as the personal representative, it would be just plain stupid not to have a lawyer. While you and/or your father could help him fill out forms, there are limits on what you may legally do to help him.

#3 sjpark

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Posted 30 January 2013 - 01:24 PM

Thanks a lot for your answer.

What payments are you talking about?

--> The letter we received says, "Our records shows that ... is deceased and was due Social Security payments at the time of death." It does not explain what kind of payments.

My paternal grandmother passed away before my great-aunt, yes. They actually had a brother but he predeceased both of his sisters many years ago.

I assume this means that one of you will be filing to probate the estate. The "legal representative" will not be the "legal representative for" your great-aunt. Rather, the "legal representative" will be the executor (or administrator or personal representative depending on the terminology used in the state in which your great-aunt resided) of the estate. As far as who "should" do it, there is no distinction in the abstract between two persons who have the same degree of relation to the deceased.

--> I think I just assumed that we would need to file to probate the estate. My great-aunt lived and died in California and it appears that we do not need to probate her estate under the small estate statute. I searched the web a little more and it looks like my father or my uncle can write an affidavit saying that he is the personal representative of the estate. That's what I have found out so far.

#4 pg1067

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Posted 30 January 2013 - 01:42 PM

My paternal grandmother passed away before my great-aunt, yes. They actually had a brother but he predeceased both of his sisters many years ago.


Did that brother leave any children? If so, they are entitled to a share of the estate.


I think I just assumed that we would need to file to probate the estate. My great-aunt lived and died in California and it appears that we do not need to probate her estate under the small estate statute. I searched the web a little more and it looks like my father or my uncle can write an affidavit saying that he is the personal representative of the estate. That's what I have found out so far.


I assume you're talking about the affidavit process under Section 13100, et seq. of the California Probate Code (http://www.leginfo.c...debody=&hits=20). That process is fine if the estate is valued less than $100k or if the estate does not include real property. If the estate includes real property, you need to look at Section 13200, et seq.

As far as the SSA, if there was money due to her at the time of her death, you may want to try and find out how much.

Given the facts stated, it may be that this can be handled without an attorney.

#5 knort4

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Posted 31 January 2013 - 07:02 AM

If someone is going to present themselves as a legal representative of an estate, they should check with the county courthouse probate court office to see what form needs to be filed, so that it would then be official. The administrator/executor would then be given a certified document called letters testamentary that he/she would then present to anyone who asks, to prove that he/she is the official legal representative. The Social Security death payment they may be referring to is possibly a one time payment of $255 that everyone gets to help pay for funeral expenses.




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