dying intestate

[Stellamj99]

my husband's father recently died intestate (without a will), he lived with a gal for years, but not married, her two grandchildren lived with them as well. My husband wanted some pictures and tools and things, she told him NO. He recently talked to an attorney who told him that he was next of kin and entitled to his father's property and personal belongings, vehicles and bank accounts. In California there is no Common Law Marriage. My husband hired the attorney to find out what deeds in the 3 homes his dad owned, what the deeds say exactly because the girlfriend will not show my husband the paperwork and money she removed from the dad's personal safe. We received the death certificates in the mail and she had put her name as the spouse, yet they are not married. What effect will this have on the outcome of probate. She also used his dad's last name on the deed in the home they were living in, it is in his and her name, only she was not married and has no proof that she is the spouse on the deed. what do you think about all this. Any idea how it will go if she cannot prove she was married?

 

[I AM ALWAYS LIABLE]

my husband's father recently died intestate (without a will), he lived with a gal for years, but not married, her two grandchildren lived with them as well. My husband wanted some pictures and tools and things, she told him NO. He recently talked to an attorney who told him that he was next of kin and entitled to his father's property and personal belongings, vehicles and bank accounts. In California there is no Common Law Marriage. My husband hired the attorney to find out what deeds in the 3 homes his dad owned, what the deeds say exactly because the girlfriend will not show my husband the paperwork and money she removed from the dad's personal safe. We received the death certificates in the mail and she had put her name as the spouse, yet they are not married. What effect will this have on the outcome of probate. She also used his dad's last name on the deed in the home they were living in, it is in his and her name, only she was not married and has no proof that she is the spouse on the deed. what do you think about all this. Any idea how it will go if she cannot prove she was married?

My response:

The first thing I would do is to make absolutely sure they were not married at the time of his death. To accomplish this task, you'll need to have someone run a "vital records" search to determine whether there was a marriage that pre-dates his death.

Then, if there isn't a marriage, I would consult an attorney to sue her for a whole host of causes of action; not the least of which would be trespass, eviction, theft, fraud, conversion, quiet title, injunction, etc., etc.

However, they didn't need to be married in order for her name to appear on the Deed of Trust to the real estate.

IAAL

 

[Stellamj99]

We know they are definitely not married. She used his last name as hers on the house, as joint tenant. But if they are not married she can not be considered the spouse, right? I believe there is no common law marriage in California, although she thinks there is.

 

[I AM ALWAYS LIABLE]

We know they are definitely not married. She used his last name as hers on the house, as joint tenant. But if they are not married she can not be considered the spouse, right? I believe there is no common law marriage in California, although she thinks there is.

My response:

Let me guess . . . she's originally from Kentucky; am I right?

Now, wait a minute. How do you know they weren't married? What is your "definite" proof? How do you know, without running a vital records search, that they weren't married one week before he died?

Family Code property and support rights and remedies are predicated on the existence of a valid marriage or, if an invalid marriage, "putative spouse" status. Moreover, simply living together as husband and wife cannot give rise to a "marriage" under California law; the concept of "common law marriage" has long been abolished in California. [Maglica v. Maglica (1998) 66 Cal.App.4th 442, 448, 78 Cal.Rptr.2d 101, 103] California law does not recognize the concept of "common law marriage": A valid marriage cannot be created in California solely by the parties' consent or mere cohabitation. [Ca Fam § 300; Norman v. Norman (1898) 121 Cal. 620, 628, 54 P 143, 145-146; Centinela Hosp. Med. Center v. Super.Ct. (Willis) (1989) 215 Cal.App.3d 971, 975, 263 Cal.Rptr. 672, 674]

UNLESS they were common law married in another State and then moved to California - - THEN, and only in that instance, does California recognize a "common law" marriage.

Also, are you thinking that, somehow, there is a relationship between whether or not they were married, and the deed to the house? If that's what you're thinking, then you're wrong. I don't care what name she used - - she could have signed the deed as "Mickey Mouse." It wouldn't, and it doesn't, matter. People who are not married buy houses together all the time in California. And, when they purchase it at the same time, they can be listed, under any names, as "Joint Tenants."

I hope you're not thinking that you can get the house all because they may not have been married. If you are, you're barking up the wrong tree.

IAAL

 

[Stellamj99]

Yes, that is exactly what I was thinking. That the house would not go to her if she did not use her legal name. So much for the house. We do know they never got married because we live by her and they just never did it. She put herself on the death certificate as the spouse, and in next of kin. My husband disputed the next of kin thing, because he is the only son. Yet she still ended up on the death certificate as spouse. We were worried that she could use this to empty the safety deposit box at the bank before probate starts. The attorney we hired is still checking into things and just mailed out the letters of probate telling her not to do anything with the father's belongings, etc...
Here is hoping something will come of it and not all his fathers hard earnings go to her and her own, rather than to my husband who is the last and only kin to the father. I suppose there will be no claim to a life insurance policy left to her as the beneficiary as well? Thank you

 

[I AM ALWAYS LIABLE]

I suppose there will be no claim to a life insurance policy left to her as the beneficiary as well? Thank you

My response:

Click on, and read this thread:

https://forum.freeadvice.com/showthread.php?threadid=101808&highlight=insurance+beneficiary

Geez, things just aren't going your way . . .

IAAL