How can I become a the executor/administrator of my late mother’s estate without having to go into probate court?

My mother passed away. I am her only child and have no siblings or existing relatives (including my father/deceased). She left a Will but not a Living Trust or list me as an Administrator of the Estate (since she thought the Will would suffice).Her illness accumulated medical bills of $34K and she only has about $3,400 in her account. I have been paying the mortgage payments since her death. If I go into Probate, do I have to pay all her medical bills ($34K )? I am barely surviving myself and I do not wish to sell her home.

Asked on July 17, 2014 under Estate Planning, California


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

I am so sorry for your loss and for the issues that have arisen.  The only way to be appointed as the fiduciary of her estate is to go in to probate court. In California, a small estate is anything under $100,000 and can be probated much easier but since you have real property in the estate, that may not be possible.  While you do not have to pay her medical bills, the estate does.  So yes, you would probably have to do something with the assets (the house) to pay off her debt. If you do nothing then the medical provider will most likely sue her estate and get a judgement and attach the house so the debt would have to be paid off before it is sold.  The problem comes is that a judgement accrues interest at a very high rate and it could end up wiping out any equity upon sale. The debt can probably be negotiated down but a payment plan would still have to be put in place. As for the house, it is good that you are keeping up with the payments and understand that inheriting the home (or being the heir at law here) is an exception to the mortgage due on sale clause, meaning it does not have to be transferred in to your name or if it is transferred the mortgage does not have to be refinanced in your name.  You can keep it as is.  I know that this can be confusing and what to do is a difficult choice.  I hope that this helped.  Good luck.  

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