California Intestate Succession

What is the name of your state? CALIFORNIA

This issue concerns my best friend's 3 children, all are age 18. My best friend passed away almost 1 year ago from breast cancer. Though she knew she was terminal she refused to accept it and she failed to make out a will regarding distribution of her personal and real property.

I'll start with the home that was purchased by my best friend and her husband during the course of their 7 year marriage. Her parents who are still alive lent them $27,000.00 to make purchasing the home possible. There is a substantial amount of equity in the home of which 50% was hers defined as community property, California law. What happens with her 50% when she failed to designate her interest to neither him or her girls, her children her priority? He continually says "it's ALL his" to these poor girls who have lost both of their bio parents. Their biological father committed suicide about 6 years ago.

I will add that just before her death the survivng spouse, their step-father had convinced all of them to allow him legal adoption of all the girls just shy of their 18th birthdays?? Was this a move of manipulation and how does this affect their rights, if at all? The four of them still live in the residence, though he is talking of selling it and moving out of state. My friends dying wishes to him was that, as their "father", that he raise and protect them until they graduate from High School and can do for themselves.

Now that they are 18 is he entitiled to 100% of the equity in the home with her not having made up a will? Does someone need to file probate? How do California probate laws handle succession of common law property? In layman's terms please! Trust me I went to the FindLaw site that "explains" succession but I'll be d@#$ed if I understood a second of what I read!

The situation also involves personal property of their mother's and deceased father (family heirlooms) aquired prior to the marriage of her now surviving spouse (the girl's adoptive step-father). This man was married to my friend for only 7 years but feels he is entitled to all of it so, and repeatedly tells the girls so. How can they avoid having the step-father walk away with property that their mother profoundly expressed should go to them! These items are without doubt theirs and were NOT aquired during the marriage. He has already thrown away and given away objects to strangers that should have been given to family or friends. He is not abiding by her wishes at all, which were heard/told/witnessed by myself in his presence on many occassions as well as by many of her close friends. His vow to her to take care off these children, until they graduate from high school (June 07) as if they were his own (afterall thats why he adopted them) and instead is verbally and psychologically abusive to these children with his threats since their mothers passing.

What can be done to see that my friends children are not victimized any further, both financially and emotionally. Also do the grandparents have any legal rights to recouping the $27.000.00 loan used as a downpayment on the residence in question?

Thanks in advance. If you have further questions please just ask.

California Intestate Succession Laws

If any part of a California decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:

1. Surviving spouse/domestic partner. In California, a surviving spouse or domestic partner is generally first in line to get any assets from the intestate estate, including any community property, quasi-community property, and separate property that belonged to the decedent.

The surviving spouse or domestic partner is entitled to the one-half of the community or quasi-community property that belonged to the decedent. In addition, the surviving spouse or is entitled to the following amounts of separate property in the estate:

* If there is no surviving issue (i.e., child), parent, sibling, or issue of a deceased sibling of decedent, the surviving spouse is entitled to the entire intestate estate.
* If the decedent leaves a surviving child, children of that child if the child predeceases the decedent, parents, or siblings, the surviving spouse gets one-half of the intestate separate property.
* If the decedent leaves more than one child or children of a predeceased child, the surviving spouse gets one-third of the separate property in the intestate estate.

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse or domestic partner as indicated above, or the entire intestate estate if there is no surviving spouse or domestic partner, passes as follows:

1. Decedent's descendants (e.g., children and grandchildren), per stirpes.
2. Decedent's surviving parent or parents equally.
3. Issue of decedent's parent or parents, split equally if they are all of the same degree of kinship to the decedent (e.g., all decedent's siblings survive) or split per stirpes if unequal (e.g., some siblings survive and some are dead but survived by children).
4. Decedent's surviving grandparent or grandparents equally.
5. Issue of decedent's grandparents, per stirpes.
6. Issue of a predeceased spouse. To be eligible to real property, the former spouse cannot predecease the decedent by more than 15 years. For personal property, the former spouse cannot predecease the decedent by more than 5 years.
7. Decedent's next of kin in equal degree. If a claim is made through two or more different ancestral lines, those who claim through the ancestor nearest to the decedent are preferred over others.

3. State of California. If there is no taker under any of the above provisions, the intestate estate reverts (escheats) to the state of California.

California Intestate Succession Law Fun Facts

* Relatives of the half blood generally inherit the same share they would inherit if they were of the whole blood (except in certain cases involving the severing of the relationship between a child and the child's natural parent due to adoption).
* Relatives of the decedent conceived before his death, but born thereafter inherit, as if they had been born during the decedent's lifetime.
* Any person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of intestate succession (which means that the person generally doesn't get a share of the decedent's estate). If it cannot be established by clear and convincing evidence that the person who would otherwise be an heir has survived the decedent by 120 hours, it is considered that the person failed to survive for the required period. However, these rules don't apply if the end result is that the state of California gets the intestate estate.
* Evildoers beware! Any person who intentionally and feloniously kills the decedent cannot inherit any of decedent's assets or otherwise benefit from the killing. The murderer is treated as if he or she had predeceased the murdered decedent, therefore being entitled to nothing (except some jail time). Felonious and intentional killing of the decedent can be established by a criminal conviction or a civil trial based on a preponderance of the evidence.
* On a similar note, a person who physically abuses, neglects, or commits fiduciary abuse of a decedent who was an elder or dependent adult is also prevented from profiting after the decedent's death. Instead of inheriting from the decedent, the abusive person is treated as having predeceased the decedent (thus becoming ineligible to inherit).
* California's intestate succession laws, as well as other laws dealing with wills and decedents' estates, can be found in the California Probate Code.

Copyright 2002 - 2007, CCH Incorporated, a Wolters Kluwer business. All Rights Reserved.

http://www.finance.cch.com/pops/c50s10d190_CA.asp

This issue concerns my best friend's 3 children, all are age 18.

Triplets, correct?

Anyway, here are your questions, along with a couple of answers.

What happens with her 50% when she failed to designate her interest to neither him or her girls, her children her priority?

See info above.


I will add that just before her death the survivng spouse, their step-father had convinced all of them to allow him legal adoption of all the girls just shy of their 18th birthdays??

Then he is indeed their father.


Was this a move of manipulation and how does this affect their rights, if at all?

I do not know him so I can't answer that one.


Now that they are 18 is he entitiled to 100% of the equity in the home with her not having made up a will?

See info above.


Does someone need to file probate?

Yes.



How do California probate laws handle succession of common law property?

See info above.


What can be done to see that my friends children are not victimized any further, both financially and emotionally.

Hire a lawyer for the financial part; I don't know about the emotional part.


Also do the grandparents have any legal rights to recouping the $27.000.00 loan used as a downpayment on the residence in question?

If they can prove it was a loan and not a gift, then they can file a claim in the probate.




I know you will have more questions, so ask away....

Or, to boil it down. Surviving hubby is entitled to 1/3 of her portion of the estate, the surviving children are entitled to the remaining 2/3, split evenly amongst them.

EDIT:
The hubby may, indeed, be entitled to 100% of the house if title was held as Joint Tenants (w/Right of Survivorship). This would pass outside of probate.

Thank you SeniorJudge for your help with this. And Zigner for the clarification.

>>>><b>Triplets, correct?</b>

Correct.

>>><b>I know you will have more questions, so ask away....</b>

You know I will ! Thanks!

Ok, the situation has escalated to the point the girls have moved out of the residence and in with the grandparents. The step-father/father has alledgedly overstepped certain boundries that I will leave unclear for obvious reasons, being a public bulletin board.

The concerns they are faced with is their personal property. In the earlier post I mentioned the mothers personal property aquired before her marriage to this man. That property is of substantial value and includes personal properties that belonged to her ex-husband, their bio-dad, and fraternal grand-parents and is technically the girls items left to them once they were old enough to take care of them. They are now 18 but still trying to finish high school. However, because of the need to get out of a bad situation quickly, this stuff is still in the home and now he, the adoptive father is still in possession of these articles.

My question is: can the girls legally go in and remove these items that belonged to their birth father without any legal problems? Afterall it is theirs! The items were being held for them by their mother, and they lived with them, of course she is no longer there to protect their interests and see to it that they receive what was given to them. As difficult as it is, despite the fact the adoptive father came into the marriage with literally nothing, they fully understand that anything that was their mother's (pre-marriage) and or property obtained during the marriage is to stay until further action to enter into probate is taken.

Should the girls ask for a civil stand-by if this is a legal move to obtain what is rightfully theirs? Also, are their items required to be listed as personal property/community property?

BTW, He has also already cashed in on an $80,000 life insurance policy. I believe he was the beneficiary in good faith he would take care of her girls. Does this amount have any play on the future outcome of distribution?

One last question....is there any kind of a deadline or statute of limitations on filing into probate? Ok, two questions....once probate is filed is all assets frozen? Can he sell the house or is that something that goes into limbo?

I know you will have questions ...so ask away....

>>>>The hubby may, indeed, be entitled to 100% of the house if title was held as Joint Tenants (w/Right of Survivorship). This would pass outside of probate.

ZIGNER- Can this be researched through public record since he has possession of everything including paperwork?

Thanks again!!

Zigner said:

Or, to boil it down. Surviving hubby is entitled to 1/3 of her portion of the estate, the surviving children are entitled to the remaining 2/3, split evenly amongst them.

EDIT:
The hubby may, indeed, be entitled to 100% of the house if title was held as Joint Tenants (w/Right of Survivorship). This would pass outside of probate.

Click to expand...

Zigner, that's correct with respect to the separate property owned by the deceased. As for community property, the surviving spouse takes 3/4 (the surviving spouse's 1/2 plus 1/2 of the decedent spouses 1/2, or 1/4 of the total -- too many fractions). In other words, the children will split 1/4 of the community property, and 2/3 of the separate property owned by the decedent spouse.

Also, in California, if the house was purchased or refinanced within the last 5 or 6 years, it's much more likely that the house would be held as community property with rights of survivorship -- it's effectively the same as joint tenancy with rights of survivorship (i.e., surviving spouse gets the whole house), but the surviving spouse gets a step-up in basis, which doesn't happen with JTROS.

The concerns they are faced with is their personal property. In the earlier post I mentioned the mothers personal property aquired before her marriage to this man. That property is of substantial value and includes personal properties that belonged to her ex-husband, their bio-dad, and fraternal grand-parents and is technically the girls items left to them once they were old enough to take care of them. They are now 18 but still trying to finish high school. However, because of the need to get out of a bad situation quickly, this stuff is still in the home and now he, the adoptive father is still in possession of these articles.

My question is: can the girls legally go in and remove these items that belonged to their birth father without any legal problems? Afterall it is theirs! The items were being held for them by their mother, and they lived with them, of course she is no longer there to protect their interests and see to it that they receive what was given to them. As difficult as it is, despite the fact the adoptive father came into the marriage with literally nothing, they fully understand that anything that was their mother's (pre-marriage) and or property obtained during the marriage is to stay until further action to enter into probate is taken.

Should the girls ask for a civil stand-by if this is a legal move to obtain what is rightfully theirs? Also, are their items required to be listed as personal property/community property?

Click to expand...

Anything that the mom owned prior to the marriage would be classified as separate property, and under California intestate laws, the girls would split 2/3's of the mom's separate property. Now, whether or not they can prove that they actually own some of that property, and mom was "holding" it for them -- that would depend on what evidence, if any exists. Whether or not stepdad will just let them come take it, well, that's up to the stepdad. It's unlikely that the police or anyone else would supervise their taking of property of disputed ownership without a court order.

But they can always ask the stepdad and see what happens.

BTW, He has also already cashed in on an $80,000 life insurance policy. I believe he was the beneficiary in good faith he would take care of her girls. Does this amount have any play on the future outcome of distribution?

Click to expand...

If he was the beneficiary of the life insurance, it's his to do with what he wishes. It it not part of the estate, and does not impact the distribution of property in any way -- it is totally separate.

One last question....is there any kind of a deadline or statute of limitations on filing into probate? Ok, two questions....once probate is filed is all assets frozen? Can he sell the house or is that something that goes into limbo?

Click to expand...

No deadline, but it's usually better to do it sooner rather than later. Anyone can file, you don't have to wait for him to do it.

As far as the house is concerned, if the house was titles with rights of survivorship, then it's his house, period, and yes, he can sell it or do whatever he wants with it, and it will have no impact on the distribution of property. If the house was held in the decedent spouse's name alone, or was held as community property (with no rights of survivorship) or tenants in common (unusual for married folks, but not impossible), then the house cannot be sold until the decedent's name is removed from the title, and that won't happen until probate is complete.

But if the house was titled as joint tenants with rights of survivorship, or community property with rights of survivorship, the house is his now, and he could sell it.

ZIGNER- Can this be researched through public record since he has possession of everything including paperwork?

Click to expand...

The title is public record, unless it is held in trust. You can check to see if your county has such records online, or you can either have a title company do the search or you can head down to the county records office and find out.

If you have a lawyer or law student friend with access to LEXIS, these records are usually available through LEXIS (most, but not all counties, are searchable).

divgradcurl~

Thanks so much for taking your time to answer in such detail and in such a way that is easy to understand.

It sure would have been clearer to all of the interested parties if my friend had only expressed her wishes in legal form. I only hope the step-dad will act in good faith and do what is right. These girls have been through so much and lost both parents so young. His words of sole possession of ALL possessions belong to him, I hope are just empty words, though hurtful, and may very well be the anger/sadness he still may be deally with over her passing. I guess we won't know for sure until it's out on the table and values, and ethics are tested on all ends.

How difficult it must be when you are condemned to die so young. To have to worry about the legal aspects, as if accepting you have no choice but to leave all you are, all you have and all you love behind, isn't enough. It was just to much reality to finalize her own exsistance, and I think writing a will was like giving up all hope for her.

At any rate....thank you and the others for the help you have given here. It is appreciated.

Take Care