Recently I had an attorney ask me about the following question.
A decedent had died holding several accounts in joint tenancy with someone believed to never have existed. Who knows why people do these kinds of things, but there it is. Apparently great effort and expense had been incurred trying to identify this person, and ultimately it was concluded they weren’t real. The question is how to proceed? The decedent had a will, but probate proceedings had not yet been started. I advised as follows:
First, the will needs to be submitted to the court to be probated. Once a personal representative has been appointed, the attorney should file a petition as follows.
Probate Code Section 850(a)(2) permits the personal representative in a probate proceedings to bring an action for a court order (C) “Where the decedent died in possession of, or holding title to, real or personal property, and the property or some interest therein is claimed to belong to another” and (D) “Where the decedent died having a claim to real or personal property, title to or possession of which is held by another.” Under Section 856 the court can render an order directing the person [read as bank] having title to or possession of the property, to execute a conveyance or transfer to the person entitled thereto, or granting other appropriate relief.”
As part of this petition, the attorney for the personal representative would want to file an ex parte petition for permission to publish notice to the joint tenant on the account claiming said joint tenant is fictitious and supporting that claim with whatever information was discovered regarding the non-existence of the joint tenant. The court would then likely render an order permitting the other joint tenant to be served by publication, and when the joint tenant fails to appear, the court would render the order desired finding ownership in the name of the decedent. The attorney would then file the petition for distribution and close the probate administration.
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