UNLAWFUL DETAINER AND ESTATE ADMINISTRATION What an Estate

UNLAWFUL DETAINER AND ESTATE ADMINISTRATION What an Estate Practitioner may want to know.

What Type of Estate do you have? Intestate Testate Spousal Property Petition/Small Estate Trust

What type of resident do you have? Family Member beneficiary � What does the trust say? The Will? Intestacy? Family Member not a beneficiary �A family member with no agreement to pay rent is still likely a tenant. Actual Tenant Care Giver Person with unknown status that is residing Spouse – no special tenancy as a spouse – licensee really, but… Decedent was the tenant

Eviction Overview (Set your Fiduciary’s Expectations) Step 1: Choose the correct notice � Special Service Rules in the agreement Step 2: File a Complaint. Step 3: Serve The Complaint � Ducking service and in rem service Step 4: Default/Answer Step 5: Trial Step 6: Sheriff Step 7: Other things that happen from time to time.

Trustee’s Duties Probate Code § 16000 - duty to administer as written Probate Code § 16003 -duty regarding impartial actions Probate Code § 16006 -Take control of and preserve trust property

Fiduciary Duties - Look at the Duties and Liabilities that each personal representative signs

THE NOTICE 30/60 Day notice to terminate a tenancy � Very common; Good for family members, caregivers etc. � Has the person lived there for more than one year � Do not let your Fiduciary take money past 60 th day � Notice re: unclaimed property. Civil Code § 1785. 26.

THE NOTICE No Notice – Termination of Employment � Sticky, If what were the terms of employment? housing not a term, then can file eviction immediately. If housing a term: Employee did not pay rent, and no deduction from pay for housing then – 3 -day If housing a term and employee paid or had a rent deduction Be sure that your person is quizzed about who made the agreement and it’s terms. Default to a 30/60 day if unclear

THE NOTICE 3 -Day death of Landlord or Tenant � Can serve 3 -day for death of a landlord. – Estate ok, Trust questionable. Have to wait until month ends if they paid rent. Not favored method Month-to-Month

THE NOTICE 3 -Day Pay or Quit � Cannot No be for more than what is due utilities. No late fees Have all the information Don’t use your letterhead

Personal Property Issues Must hold for 15 days same security as occupant used. Vacated from being served notice? – Did notice have a abandoned property clause? � Must give abandonment Vacated based on sheriff’s lock out? Abandoned property if less than $700. 00 becomes property of Landlord

Personal Property Issues If Decedent resided there then Fiduciary should be able to go in and get property. 24 hour notice of Entry - Civil Code § 1954 � Cannot enter to ascertain personal property of decedent and recover. � But you can enter to check condition and take picture.

Standing/Power to obtain Possession A trustee of a Trust – common that a beneficiary challenges title and the trustee hasn’t executed an affidavit. Executor of a Will, especially if Will contains language regarding discretion to sell. Intestacy. Administrator has power. Probate Code § 7000: “Subject to Section 7001, title to a decedent’s property passes on the decedent’s death to the person to whom it is devised in the decedent’s last will or, in the absence of such a devise, to the decedent’s heirs as prescribed in the laws governing intestate succession. ”

Standing/Power to obtain Possession Probate Code § 7000: “The decedent’s property is subject to administration under this code, except as otherwise provided by law, and is subject to the rights of beneficiaries, creditors, and other persons as provided by law. ”

Standing/Power to obtain Possession Probate Code § 9650(a)(1) “The personal representative has the right to, and shall take possession or control of, all the property of the decedent to be administered in the decedent’s estate and shall collect all debts due to the decedent or the estate. . . Probate Code § 9650(c) “Real property or tangible personal property may be left with or surrendered to the person presumptively entitled to it unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for purposes of administration. The person holding the property shall surrender it to the personal representative on request by the personal representative. ”

Judgment It needs to be assigned through the Probate after obtained Forgiveness of the debt may be accountable as income to the debtor. Often waived at trial, or takes 8 -12 months if entered by way of default. Counting utility payments and rent against the beneficiary without a judgment as disbursements.

Utilities If Decedent had utilities in their name, then 60 day notice to change terms of tenancy to make tenant put them in their name $100. 00 per day fine; plus attorney’s fees.

Probate Code § 850 This section may be used for possession of Real Property. � Only been used 1 time that I know of in this county, sheriff had trouble with it.

Understanding Pre-judgment claim Code of Civil Procedure § 415. 46 � Must be served by licensed Process Server � Cuts off claims of unknown occupants � Sheriff will serve one if one is not filed.

Defenses Plaintiff lacks standing Defect in the notice Habitability – On action for rent Retaliation Property not needed for administration.

Duties of Owner/Landlord Even if there is no real agreement, the duties of a regular landlord apply to an occupant who was given permission to reside. Habitability – duty to repair.

Small Estate Probate Code § 9654 “The heirs or devisees may themselves, or jointly with the personal representative, maintain an action for possession of property or to quiet title to property against any person except the personal representative. ” Typically you need to complete a small estate proceeding before an Eviction to gain title. But technically you don’t have to.

Drafting Consider, when appropriate, identifying a time for the trustee to commence an action. i. e. allowing beneficiaries to reside in the residence. Consider a clause that allows the trustee to deduct a rent fee or deduct utilities.

Deposit Notice of Inspection. Letter to last known address within 21 days.