Intestate - Community, or Separate Property?

[freakbeat21]

What is the name of your state (only U.S. law)? California
My wife's dad died almost 2 months ago. He was married to his current wife for only 3 years. The widow is uncooperative with us. She's bi-polar, so one day she might be nice, the next day she's just verbally abusive. We've decided not to talk to her anymore.

Due to the widow's uncooperation with us on getting just little pictures from the house for now, my wife wants to open up the probate case herself and petition to be Executer. Will it be hard to prove the widow incompetent?

When my wife was a child, she was the beneficiary of his life insurance ($170k-$200k) policy. Now there is no beneficiary, so we think the term expired on it, and he didn't think he had to put the beneficiaries on the new policy. His 401k policy he had with a company for 25 years also has no beneficiary.

Our question is since all this money is becoming part of the estate, is this all gonna be considered community property? or is it considered separate property and be split between his 2 children and current wife? We really hope this woman that was married to him for only three years doesn't get everything. Especially with her attitude against us.

 

[HappyWanderer]

I think a person has to be incompetent before one can have any success at a court finding them incompetent. You haven't given any reason to think she is.

Community property all goes to the spouse on an intestate death. Separate property goes according to intestate succession and 1/2 will go to the spouse.

The 401K will be partially community and partially separate. The life insurance policy will partially depend on if dad kept funds used to purchase the policy separate.

Proving what parts are community and separate can be hard--especially when you don't have the original documentation. You will need an attorney.

 

[freakbeat21]

The Widow is bi-polar and a drug addict, but I doubt we'd be able to prove she's an addict in court. So with that said, what chance does my wife have winning the petition for Executive?

So, all the funds paid into the 401k plan before the marriage would be separate right? And the funds paid in during their 3 years of marriage would be community?

What if the life insurance policy was purchased before the marriage? It was through his work, so I don't know if he paid the premium himself or his work paid for it. Let's say he payed the monthly premium out of his paycheck. If it was a term policy, and he enrolled in it before the marriage, would it be separate property?

 

[HappyWanderer]

Being appointed executor depends on challenge. No one can predict.

Strictly speaking, yes. The portion of the 401K before marriage is separate. Courts do different ways to determine the ratio. Time? Amount deposited? Who knows.

The insurance policy has so many variables I'm not even going to guess how to search the internet for the answers.