Posted: October 23, 2013 | By: David Weil, Esq.
The resolution to our reader’s problem will require the cooperation of the seller’s family. And, depending on the value of the seller’s estate and whether the boat is Coast Guard documented, he may need to work with the family to probate the seller’s estate.
When an estate is probated, the court appoints an executor to take charge of things, and to stand in the place of the deceased person to sign contracts and other documents. Even where a valid will was prepared, the executor will not automatically have the authority to sign papers unless and until that authorization is granted by a probate court. A probate is therefore necessary for all property transfers after death, unless some exception is available.
The most common exception to the probate requirement is where the deceased person’s property is held by a revocable family trust. In those cases, the trust papers will name a successor whose signature is effective upon the death of the original owner, without the need for probate. Unfortunately, the scenario described above did not involve a trust.
Where property is held by an individual, California law allows for transfer without probate if the total value of all the transferred property does not exceed $150,000. This limit was increased from $100,000 to $150,000 in 2009 -- and it is calculated on the value of the entire estate, not just a single asset, such as a boat.
Under the procedures set forth in California Probate Code sections 13100 through 13116, the heirs of the deceased person may prepare an affidavit, which describes the property and their relationship to the deceased. The affidavit may then be delivered to the Coast Guard, with a Bill of Sale to transfer a documented vessel.
The transfer process is much easier if the boat is California registered rather than documented through the Coast Guard. Section 9916 of the California Vehicle Code allows for the deceased person’s heirs to transfer a state-registered vehicle or vessel through an affidavit procedure, regardless of the value of the boat.
The Department of Motor Vehicles has a form for this purpose (DMV Form REG 5 - Affidavit for Transfer without Probate) that may be downloaded at dmv.ca.gov
Our reader would need to consider all of these steps to be able to sell the boat on behalf of her deceased father -- but her problem was complicated by the fact that the boat was never transferred into her father’s name. She is very lucky that the seller’s family is cooperating, since she will need at least one affidavit signed by the heirs of the owner of record. Under a worst-case scenario, she could be looking at a lawsuit to establish ownership of the boat.
We often see the paperwork for a vessel sale delayed, sometimes due to a clerical oversight, but other times due to an attempt to circumvent a marina waiting list or to defer the assessment of sales or use tax. Our reader’s case is a reminder of the consequences that may result from these actions.
Regardless of the value of the boat, the transfer of a vessel without probate may be a complicated matter, from both a legal and a paperwork standpoint. Probate is a complex area of the law, and an attorney who specializes in probate and estate planning should be consulted.