How do I sell a dead person's car in California?
July 23, 2010 11:10 AM Subscribe
My sister died without a will in California, her estate is going through probate, and I am (will be) the executor. How do I sell her car? My lawyer and the DMV are telling me different things.
Option 1: My lawyer says to just sign the title to release interest in the vehicle, even though my name is not on the title. He says I can do this because I am (will be) the deceased owner's personal representative. Then sell the the car and give the new owner this signed title.
Option 2: The DMV says I need to transfer the car to myself first, using the "affadavit for transfer without probate". I told them that I need to transfer *with* probate, but they told me to fill out the form anyway. Filling out the form would require me to explicitly lie. I was given the same advice three different times when I called the DMV to try to clarify.
Who's right, my lawyer, the DMV, or neither? Has anybody out there had to do this? I want to do this correctly, so as not to screw over the person I sell the car to.
Option 1: My lawyer says to just sign the title to release interest in the vehicle, even though my name is not on the title. He says I can do this because I am (will be) the deceased owner's personal representative. Then sell the the car and give the new owner this signed title.
Option 2: The DMV says I need to transfer the car to myself first, using the "affadavit for transfer without probate". I told them that I need to transfer *with* probate, but they told me to fill out the form anyway. Filling out the form would require me to explicitly lie. I was given the same advice three different times when I called the DMV to try to clarify.
Who's right, my lawyer, the DMV, or neither? Has anybody out there had to do this? I want to do this correctly, so as not to screw over the person I sell the car to.
Did she have a will? I'm not clear on that, and it may not make a difference in California.
Here is my advice based on what I know to be true in Arkansas: Once you have the court order in your hand stating that you are the executor of her estate, that basically acts as a power of attorney and you can sign any legal documents on her/her estate's behalf, as long as you are acting within the guidelines of her will. In Arkansas, this allowed us to sell EVERYTHING that belonged to the estate (including real estate and personal effects). If she didn't have a will, act within the probate laws of California with regards to estates without wills. So, this means that Option 1 is correct (in my opinion and experience).
If you don't plan on driving or using the car, I don't see why you would need to take ownership of the car (like the DMV is telling you to do). I think the DMV might be thinking that you are inheriting the car or taking possession of it yourself, which is not exactly what you are doing. The car remains the property of the estate until it is either sold or the estate/probate is closed (via court order). When you are doing business as the executor, technically you are acting as the estate and not "pizzazz". In the situation in Arkansas I described above, we opened a separate bank account in the name of the estate so that none of the money ever went into our personal accounts. The deceased had a bank account but it had other people on it and things were gonna get messy, so everything that was sold for the estate went into the estate bank account and any bills/fees/etc. that needed to be paid came from that estate account.
IANAL, but I'd listen to your lawyer on this one.
posted by MultiFaceted at 11:27 AM on July 23, 2010
Here is my advice based on what I know to be true in Arkansas: Once you have the court order in your hand stating that you are the executor of her estate, that basically acts as a power of attorney and you can sign any legal documents on her/her estate's behalf, as long as you are acting within the guidelines of her will. In Arkansas, this allowed us to sell EVERYTHING that belonged to the estate (including real estate and personal effects). If she didn't have a will, act within the probate laws of California with regards to estates without wills. So, this means that Option 1 is correct (in my opinion and experience).
If you don't plan on driving or using the car, I don't see why you would need to take ownership of the car (like the DMV is telling you to do). I think the DMV might be thinking that you are inheriting the car or taking possession of it yourself, which is not exactly what you are doing. The car remains the property of the estate until it is either sold or the estate/probate is closed (via court order). When you are doing business as the executor, technically you are acting as the estate and not "pizzazz". In the situation in Arkansas I described above, we opened a separate bank account in the name of the estate so that none of the money ever went into our personal accounts. The deceased had a bank account but it had other people on it and things were gonna get messy, so everything that was sold for the estate went into the estate bank account and any bills/fees/etc. that needed to be paid came from that estate account.
IANAL, but I'd listen to your lawyer on this one.
posted by MultiFaceted at 11:27 AM on July 23, 2010
Did she have a will?
First sentence:
"My sister died without a will in California"
posted by ddaavviidd at 11:31 AM on July 23, 2010 [8 favorites]
First sentence:
"My sister died without a will in California"
posted by ddaavviidd at 11:31 AM on July 23, 2010 [8 favorites]
Is your lawyer a probate/estate lawyer? If you aren't sure if they're right, try talking to another one. Probably though you should do what your lawyer says, the DMV is under no obligation to help you or give you the right information and your lawyer is.
posted by r_nebblesworthII at 12:36 PM on July 23, 2010
posted by r_nebblesworthII at 12:36 PM on July 23, 2010
I'm sorry for your loss. The term "executor" applies only in cases of a will. S/he "executes" a will. You will instead be named "Personal Representative" of the estate by the courts, having applied to do so, typically through your probate attorney. On the day you are named representative your attorney will have a paper from the court saying so. You will take this paper along with your sister's death certificate to the DMV and they will take it from there.
Best wishes for a smooth probate.
posted by Mertonian at 12:38 PM on July 23, 2010
Best wishes for a smooth probate.
posted by Mertonian at 12:38 PM on July 23, 2010
My dad didn't have a will and I was driving his car. My mom had to send the WI DMV a copy of the death certificate so they would transfer the title to me in MN. Long, PITA type of thing. I think the interstate nature of it made it worse. Took about three months. Your DMV may have an "expedited" option for a little more money if you need a transfer. I bet the CA DMV is loads of fun. :)
posted by ShadePlant at 4:29 PM on July 23, 2010
posted by ShadePlant at 4:29 PM on July 23, 2010
I'm sorry for your loss.
I worked as a paralegal in California for many years, and we had to deal with this issue frequently. The Affidavit for Transfer Without Probate is based on California statute, which lets heirs collect assets, other than real property, if the total value of all assets is less than $100,000. Technically, if your sister had assets totalling $100,000 or more in value, you should run everything, including automobiles, through probate -- but the court and the DMV are pretty lenient when it comes to cars. You wouldn't be doing anything wrong if you used the affidavit procedure to transfer your sister's vehicle. If you already have a buyer, the easiest thing to do would be to go to the DMV with the buyer, bring a certified copy of your sister's death certificate, and complete the affidavit and other transfer paperwork together. If you don't yet have a buyer, you could transfer title to the car into your name as personal representative (but to do this you'd also need your court-issued Letters of Administration), then transfer the car to a buyer later. You might want to make sure that none of the heirs want to inherit the car, as part of their share of the estate, before you sell it.
Please remember that none of what I've said is legal advice, but rather information based on work experience. Talk to your lawyer about any questions you have -- that's what s/he is there for. Good luck.
posted by Boogiechild at 6:48 PM on July 23, 2010 [1 favorite]
I worked as a paralegal in California for many years, and we had to deal with this issue frequently. The Affidavit for Transfer Without Probate is based on California statute, which lets heirs collect assets, other than real property, if the total value of all assets is less than $100,000. Technically, if your sister had assets totalling $100,000 or more in value, you should run everything, including automobiles, through probate -- but the court and the DMV are pretty lenient when it comes to cars. You wouldn't be doing anything wrong if you used the affidavit procedure to transfer your sister's vehicle. If you already have a buyer, the easiest thing to do would be to go to the DMV with the buyer, bring a certified copy of your sister's death certificate, and complete the affidavit and other transfer paperwork together. If you don't yet have a buyer, you could transfer title to the car into your name as personal representative (but to do this you'd also need your court-issued Letters of Administration), then transfer the car to a buyer later. You might want to make sure that none of the heirs want to inherit the car, as part of their share of the estate, before you sell it.
Please remember that none of what I've said is legal advice, but rather information based on work experience. Talk to your lawyer about any questions you have -- that's what s/he is there for. Good luck.
posted by Boogiechild at 6:48 PM on July 23, 2010 [1 favorite]
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posted by blaneyphoto at 11:21 AM on July 23, 2010