The Tale of the Secret Probate: a Dispute over $1 million

What happens when someone opens and closes probate in secret? What follows is based on fact, but at the time of this article, I do not personally know how much of it is true. But it raises interesting legal questions, which I seek to answer, just in case someone comes across a similar situation.

The background

An interesting situation came across my desk today. A man from California died in 2018. His long-lost relative thought that he maybe had around $1 million in available assets, but didn’t know for sure. The man’s wife sent a list of bank account numbers along with a note that read “good luck,” which was all the information the cousin possessed.

Additionally, and strangely, all the man’s relatives were dead. There was no child. The wife was the one who sent the list of bank accounts, and before her death, she explained that he and she always maintained separate finances and intentionally set up their estates so that the other would not inherit. The parents were dead. There was no one left alive to open probate.

When the cousin called the bank about the accounts, the bank would not share any information. This is normal. Banks cannot just give out information to every person who calls, even if they do know the account numbers. All the bank shared was that the accounts had been closed.

The State maintains a list of property that has been turned over, so we looked at the State Controller’s office website. There were a lot of bank accounts that had been turned over for people having the same name, but none of the addresses matched, and none of the accounts had anywhere near $1 million.

After a lot of searching, we were left with the question: What happened to the money? Did it ever exist? And more importantly, does it make sense to open probate? Also, was probate possibly opened in secret by the wife’s son to take all the money without giving notice to rightful heirs?

It is the last question to which we turn our attention now. What is the legal remedy if someone opens a secret probate?

What to do when someone opens a secret probate?

Let’s assume for a moment that the son did open secret probate. What I mean by “secret probate” is this: He filed paperwork with the court and did not send notice to the relatives that the court hearings were occurring, so the relatives had no chance to object, to inspect the assets of the estate, or to see if there were entitled to receive something. If the step-son opened a probate without giving proper notice, he might have convinced the court that he was the proper heir, even though he was not. When there is no one to provide an objection and to correct the court’s record, the court accepts the pleadings as if they were true.

Probate Code section 8110 requires that a proposed administrator give notice to “each heir of the decedent, so far as known to or reasonably ascertainable by the petitioner.” This has been the notice requirement since at least 1988. The wording is interesting: the petitioner need only notice (1) those heirs known to him, and (2) those heirs that he could reasonably discover.

The case In re Black’s Estate (1943) 56 Cal.App.2d 796 discusses a situation where there is a failure to notice. This case predated the current language. According to the case, the statutory language at the time only included the first category of notice recipients, those persons “known” to the petitioner. The plaintiffs failed to state a cause of action in that case, because they never alleged that the person who opened probate (the petitioner) had known who they were and that they were potential heirs of the estate.

Had they made the correct pleading and established claims that they were known heirs, then the court would have permitted them to file a “Petition to Revoke Probate.” In essence, the remedy available would have been to undo all the court orders distributing property so that Probate could be done properly.

Under the modern statute, the petitioner would have to allege that they could have reasonably been discovered. In the case that landed on my desk, the person might be able to claim that they were reasonably discoverable, because they received a letter from the son’s attorney in 2022. If the son’s attorney found them, then the son certainly could have.

Whether the petitioner could have found the heir within “reasonable effort” becomes a question for the judge or jury at trial, but the allegation must at least be made in the pleading that the person asking for the revocation believes and has a good argument for the fact that they were reasonably discoverable and the probate administrator did not do his or her due diligence when they filed for probate the first time.

What happened to the $1 million?

It’s far too early to determine if the deceased person actually had $1 million or if it was stolen by the step-son. In this case, because the step-son’s attorney contacted the cousin with a letter, I doubt that probate has been opened. I do find it curious that the bank accounts have been closed and no money has been turned over to the State Controller. The question remains as to whether it is worth pursuing a potentially dead-end road. That is a decision that the client will have to make.

What to do if you need a probate attorney.

If you need a probate attorney in Kern County, call Coleman & Horowitt, LLP, at 661-325-1300. Ask for Jared R. Clemence. (that’s me.) A 1-hour consultation is usually required, but exploring your options is worth the fee.