I know you're sick of me but....

[deanie-t]

What is the name of your state? CA

Okay, this crappy Trust saga has been going on for over a year - we have mediation next week - don't know if this is a good thing or not but anyway -

Four daughters - 3 with same mother and father, 1 with same father different mother - ten years older than the other three.

Today, my half sister's mother called me. "Susie Q" (my half sister) estranged herself from our side of the family twelve years ago when our father died (She was angry with my sisters and me because we would not help her pay an attorney to sue our mother (who was still married to our father when he died) to get his pension (that automatically went to our mother). We refused, and Susie Q cut us out of her life - moved, changed numbers, etc.

My mother died in 2003. Trust divides her property between my two sisters and me. Specifically states that she has no other heirs. As evidenced by my prior posts - this is truly the PROBATE FROM HELL but anyway - Susie Q's mother, out of the blue, calls me today. She found out about our mother's death, went on line and got some probate information. Because she's a real estate agent, she was able to get information on the Trust properties.

Okay so this situation is messy enough - Susie's Q's mother says that she and Susie Q are going to file claims against our mother's estate. She says my father never paid child support for Susie Q (who, by the way, is now 55 years old - and despite the fact that my mother kept every cancelled check our father sent for child support to Susie Q's mother). And that Susie Q has a claim because she's an heir of our father's - who our mother excluded from her Trust / Will. She got my attorney's name and number (it's on the Probate info she received from the court) and she says their going to throw a wrench in this mess with their claims - that we may as well try to work something out with them before it gets to this point.

So is this something I need to be concerned about? I mean dang - like dealing with my "whole" sister's hasn't been stressful enough - now this?? Gads!

Thanks....

 

[BelizeBreeze]

Since I'm not going to go looking for all of your other posts here's the main question:

Did your father leave a will? If not was his estate probated as intestate?

 

[seniorjudge]

What is the name of your state? CA

Okay, this crappy Trust saga has been going on for over a year - we have mediation next week - don't know if this is a good thing or not but anyway -

Four daughters - 3 with same mother and father, 1 with same father different mother - ten years older than the other three.

Today, my half sister's mother called me. "Susie Q" (my half sister) estranged herself from our side of the family twelve years ago when our father died (She was angry with my sisters and me because we would not help her pay an attorney to sue our mother (who was still married to our father when he died) to get his pension (that automatically went to our mother). We refused, and Susie Q cut us out of her life - moved, changed numbers, etc.

My mother died in 2003. Trust divides her property between my two sisters and me. Specifically states that she has no other heirs. As evidenced by my prior posts - this is truly the PROBATE FROM HELL but anyway - Susie Q's mother, out of the blue, calls me today. She found out about our mother's death, went on line and got some probate information. Because she's a real estate agent, she was able to get information on the Trust properties.

Okay so this situation is messy enough - Susie's Q's mother says that she and Susie Q are going to file claims against our mother's estate. She says my father never paid child support for Susie Q (who, by the way, is now 55 years old - and despite the fact that my mother kept every cancelled check our father sent for child support to Susie Q's mother). And that Susie Q has a claim because she's an heir of our father's - who our mother excluded from her Trust / Will. She got my attorney's name and number (it's on the Probate info she received from the court) and she says their going to throw a wrench in this mess with their claims - that we may as well try to work something out with them before it gets to this point.

So is this something I need to be concerned about? I mean dang - like dealing with my "whole" sister's hasn't been stressful enough - now this?? Gads!

Thanks....

Q: So is this something I need to be concerned about?

A: Yes. And when they do all this stuff, have your lawyer hit them with a lawsuit demanding damages for filing a frivolous lawsuit and get your lawyer fees and damages.

 

[deanie-t]

Ooops..

Since I'm not going to go looking for all of your other posts here's the main question:

Did your father leave a will? If not was his estate probated as intestate?

No, he did not have a will, Trust, nothing. Nothing was probated. Everything he had passed to my mother. They never divorced, but lived seperate lives for the last 17 years of his life.

My mother created her Trust in 1995, two years after my father died. He died in 1993, Mom died in 2003.

Does that help?

Thanks!

 

[deanie-t]

Thanks...

Q: So is this something I need to be concerned about?

A: Yes. And when they do all this stuff, have your lawyer hit them with a lawsuit demanding damages for filing a frivolous lawsuit and get your lawyer fees and damages.

Thanks, I will! My attorney is out of town until next week (of course I want to call him this very minute!!) but I'm meeting with him next Wednesday to prep for our mediation on Friday. More than you can possibly know, I truly, truly appreciate your advice....

Have a great weekend!

 

[BelizeBreeze]

No, he did not have a will, Trust, nothing. Nothing was probated. Everything he had passed to my mother. They never divorced, but lived seperate lives for the last 17 years of his life.

My mother created her Trust in 1995, two years after my father died. He died in 1993, Mom died in 2003.

Does that help?

Thanks!

It helps me, it does NOT help you. Your father's estate should have been probated under his state's "Intestate Succession" laws which would have given your half/sister a portion of the estate.

Since everything passed to your mother and now she has effectively 'disinherited' the half-sister, she has a claim against the estate and a good attorney can make a strong case for any interest that her portion of the father's estate might have brought her.

I suggest you get serious with your attorney next week.

 

[seniorjudge]

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. A surviving spouse is generally first in line to get any assets from the intestate estate, including both separate property and the one-half of community property that belongs to the decedent. The surviving spouse is entitled to one-half of the community and quasi-community property that belonged to the decedent. In addition, the surviving spouse 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 as indicated above, or the entire intestate estate if there is no surviving spouse, 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 - 2005, CCH Tax and Accounting - A WoltersKluwer Company. All Rights Reserved.

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

 

[deanie-t]

Wow - I am truly stupified.

Thanks for all of your research and advice. Now I'm totally confused....

At the time of my father's death, he and my mother jointly owned two properties - he lived in one, she lived in the other. There was no trust or will, Dad said all along that everything would automatically pass to our mother so a will was unnecessary. Are you saying that 1/3 of our father's estate should have gone to our mother, and 2/3'rds to my sisters and me? Our mother got everything - properties, bank accounts, pension plan. We didn't question it, or think we any had right too. We trusted our parents explicity.

Since our mother failed to open probate on our father's estate - is her 1995 Trust even valid?

The division of our mother's Trust is as follows:

Mary, Jane and Barb to receive one property

Annie (Trustee) to receive second property.

Thing is, Annie has already removed her property from the trust and transferred it to herself. She refuses to transfer the other property to Mary, Jane and Barb. Since our property is the only asset left in the Trust - if Susie Q contests our mother's Trust, can Annie now use our property to defend the Trust?

God, I'm really feeling sick.

Thanks....

 

[seniorjudge]

Thanks for all of your research and advice. Now I'm totally confused....

At the time of my father's death, he and my mother jointly owned two properties - he lived in one, she lived in the other. There was no trust or will, Dad said all along that everything would automatically pass to our mother so a will was unnecessary. Are you saying that 1/3 of our father's estate should have gone to our mother, and 2/3'rds to my sisters and me? Our mother got everything - properties, bank accounts, pension plan. We didn't question it, or think we any had right too. We trusted our parents explicity.

Since our mother failed to open probate on our father's estate - is her 1995 Trust even valid?

The division of our mother's Trust is as follows:

Mary, Jane and Barb to receive one property

Annie (Trustee) to receive second property.

Thing is, Annie has already removed her property from the trust and transferred it to herself. She refuses to transfer the other property to Mary, Jane and Barb. Since our property is the only asset left in the Trust - if Susie Q contests our mother's Trust, can Annie now use our property to defend the Trust?

God, I'm really feeling sick.

Thanks....

Jointly-held property (real, mixed, or personal) does NOT pass through probate. There is nothing to pass because at the moment one of the joint tenants dies, the other one gets it automatically.

So, tell us EXACTLY what ma and pa owned that was NOT joint and did NOT otherwise pass outside of probate (e.g., payable on death bank account, etc.)

 

[Jclaw24]

Maybe some guidance

I am a 3rd year law student in Michigan, so as a disclaimer always ASK AN ATTORNEY.

First, your father's estate has always been probated (when he passed away). I'm "assuming" all that he owned went to his wife. It now becomes hers. As owner of property, she may dispove of it as she wishes (intent). She made a trust, where 3 daughters are the beneficiaries. Your facts do not state who the trustee is, I think we can continue with your question however.

A settlor (creator of the trust, your mother) can certainly make trust provisions that expressely state who the beneficiaries. The upset sister is not one of these sisters. The court, should (almost invariably will) uphold your mothers intent, nothing was said of the fourth daughter. Unfortunately for her, our courts do uphold cutting people out of testamentary documents (wills) and trusts.

Can she make a claim to the estate? Well, the trust is no longer your mothers trust. Legal title belongs to the trustee and the beneficial title belongs to the three sisters. Think of it like this, your mother "gave something away" it is no longer hers. However, she controls the asset distribution still past her death through trust provisions (the beauty of a trust). The sister wants to argue that the father never paid child support. Well, because the father's estate has already been probated, she can't make a creditor claim upon his estate. There is nothing for her to argue against your mother's assets, because the assets are not hers. Child support would be an argument if you, as a beneficial, owed child support to her. She may be able to attack the res (trust property) either in your hands or the trustee's hands, depending on the trust provisions. However, that is not the situation, you do not owe her support. I do not think she has a claim.

AGAIN, I am only a law student.

John

 

[deanie-t]

Again, many thanks.....

The only personal assets of my father's at time of death (1993) were a checking and savings account (approximately $20,000.00) total. I know this because when he was dying (alcoholism) he could no longer write so I would write out his checks for him (bills, utilities, insuance, etc.) in addtion to general care taking stuff. When he died, our mother claimed these bank accounts and we didn't question it. In hind sight I suppose now we should have, but I was young, devestated by my father's illness and death, and had never dealt with the anything like this in my life. I just assumed everything of his went to our mother because she said so. Would Susie Q then have a claim on these monies, only? If so, and it's valid, how would it be rectified?

My "whole" sister, Annie, is the Trustee of our mother's Trust. Both of mother's properties (both paid off, no mortgage, leins or loans) were put into the Trust to be divided among my two whole sisters and myself. Mother left a POD account to Annie. There were no investments, stocks, anything of that nature to be "managed" by Trustee. Also, at time of mother's death, there was close to $30,000.00 in Trust income (sale proceeds from a third property in another state, rent monies from one of the Trust properties, final pension check, etc.) - pour over will states that all Trust remainder is to be divided between my whole sisters and myself. So, Susie Q would not have a claim to these properties or the Trust income?

Again, thanks for everything. I really appreciate your guidance and wisdom. Have a great weekend!

 

[BelizeBreeze]

I am a 3rd year law student in Michigan, so as a disclaimer always ASK AN ATTORNEY.

First, your father's estate has always been probated (when he passed away). I'm "assuming" all that he owned went to his wife. It now becomes hers. As owner of property, she may dispove of it as she wishes (intent). She made a trust, where 3 daughters are the beneficiaries. Your facts do not state who the trustee is, I think we can continue with your question however.

A settlor (creator of the trust, your mother) can certainly make trust provisions that expressely state who the beneficiaries. The upset sister is not one of these sisters. The court, should (almost invariably will) uphold your mothers intent, nothing was said of the fourth daughter. Unfortunately for her, our courts do uphold cutting people out of testamentary documents (wills) and trusts.

Can she make a claim to the estate? Well, the trust is no longer your mothers trust. Legal title belongs to the trustee and the beneficial title belongs to the three sisters. Think of it like this, your mother "gave something away" it is no longer hers. However, she controls the asset distribution still past her death through trust provisions (the beauty of a trust). The sister wants to argue that the father never paid child support. Well, because the father's estate has already been probated, she can't make a creditor claim upon his estate. There is nothing for her to argue against your mother's assets, because the assets are not hers. Child support would be an argument if you, as a beneficial, owed child support to her. She may be able to attack the res (trust property) either in your hands or the trustee's hands, depending on the trust provisions. However, that is not the situation, you do not owe her support. I do not think she has a claim.

AGAIN, I am only a law student.

John

I suggest you go back and repeat your second year. Not only was the father's estate never probated as required by California's intestate succession statutes, but there is still no indication as to HOW title was held in the property.

I sure hope you don't 'assume' facts not in evidence while in moot court.

 

[BelizeBreeze]

The only personal assets of my father's at time of death (1993) were a checking and savings account (approximately $20,000.00) total. I know this because when he was dying (alcoholism) he could no longer write so I would write out his checks for him (bills, utilities, insuance, etc.) in addtion to general care taking stuff. When he died, our mother claimed these bank accounts and we didn't question it. In hind sight I suppose now we should have, but I was young, devestated by my father's illness and death, and had never dealt with the anything like this in my life. I just assumed everything of his went to our mother because she said so. Would Susie Q then have a claim on these monies, only? If so, and it's valid, how would it be rectified?

My "whole" sister, Annie, is the Trustee of our mother's Trust. Both of mother's properties (both paid off, no mortgage, leins or loans) were put into the Trust to be divided among my two whole sisters and myself. Mother left a POD account to Annie. There were no investments, stocks, anything of that nature to be "managed" by Trustee. Also, at time of mother's death, there was close to $30,000.00 in Trust income (sale proceeds from a third property in another state, rent monies from one of the Trust properties, final pension check, etc.) - pour over will states that all Trust remainder is to be divided between my whole sisters and myself. So, Susie Q would not have a claim to these properties or the Trust income?

Again, thanks for everything. I really appreciate your guidance and wisdom. Have a great weekend!

Annie needs to find out how title was held in the community property BEFORE any negotiations proceed. If the house was not JTROS or the auto was titled in MOM AND dad's name instead of "OR" then there are problems that a probate attorney will help you to unravel.

 

[deanie-t]

Belize Breeze

Annie needs to find out how title was held in the community property BEFORE any negotiations proceed. If the house was not JTROS or the auto was titled in MOM AND dad's name instead of "OR" then there are problems that a probate attorney will help you to unravel.

Thanks so much for your insight! I'm meeting with my attorney next Wednesday and will bring your notes. Truth is, I honestly have no idea how these properties were titled when my father died - only that they are titled to our mother's Trust, now. I'm postive about his bank accounts - they were his solely. I know his car was in his name only, but Mom took the car for herself.

I don't mean to jump the gun now, but if it turns out that my father's estate should have been probated, but wasn't ... where does that leave us now? Of course I will ask my attorney all of this when we meet, but like I said, he's out of town and I'm kinda antsy.

Again, thanks so much for everything - it is appreciated it more than you know.

 

[seniorjudge]

Thanks so much for your insight! I'm meeting with my attorney next Wednesday and will bring your notes. Truth is, I honestly have no idea how these properties were titled when my father died - only that they are titled to our mother's Trust, now. I'm postive about his bank accounts - they were his solely. I know his car was in his name only, but Mom took the car for herself.

I don't mean to jump the gun now, but if it turns out that my father's estate should have been probated, but wasn't ... where does that leave us now? Of course I will ask my attorney all of this when we meet, but like I said, he's out of town and I'm kinda antsy.

Again, thanks so much for everything - it is appreciated it more than you know.

Q: I don't mean to jump the gun now, but if it turns out that my father's estate should have been probated, but wasn't ... where does that leave us now?

A: At the probate court, opening a probate.