Dying Intestate

[lauriegirl71]

What is the name of your state? Florida

My father in law died in California last year. He wrote a will in 1986, splitting his estate among his 3 children. He gave copies to each child--the original cannot be found. It is a handwritten will and only signed by him--no notary or witness cosigned. A few years later, he married another woman and was married to her until his death. At the time of his death, there was no other will in existence, and when we consulted 2 or 3 different attorneys, all told us that in California, in lieu of a will, the spouse is awarded the entire estate. We were amazed...even though he had 3 children? He had become estranged from his 2 daughters, but he and my husband were still very close. He had intended to write a new will, explaining that his estate should be equally divided between his wife and his son, however, this will was never written. His wife petitioned to become executor of his estate, and, thinking his children had no case, we did not appear at the hearing. The wife's "intention" at the time of her husband's death was to honor my father in law's wish and split with my husband 50-50, but, of course, last month she told him he wasn't going to get anything.

I searched this forum today and came up with a post that outlined California's Intestate Law:
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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.
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My questions are these:
1. Does the above info mean that his children DO have a stake in the estate?
2. Can the copy of the 1986 will be used?
3. Do the children have a right to open a probate case this late after the death (and an executor hearing has already taken place), seeing as they were his children?
4. Is it too late for any action?

We have contacted an attorney who is looking into the case, but I'd like to see what this forum would produce for us before we meet with him.

I apologize for my naivete, this is all new to my husband and I.

Thanks to all who respond.

 

[divgradcurl]

1. Does the above info mean that his children DO have a stake in the estate?

Yes. The wife does NOT automatically get the entire estate under instestacy. The wife gets a big chunk -- 1/2 of the husband's separate property, and 3/4's of the community property -- but the remaining 1/2 of the husband's SP and 1/4 of the community property should be divided amongst the other heirs.

2. Can the copy of the 1986 will be used?

No. Copies of the will are generally not acceptable. You need an original.

In any event, it wouldn't matter even if you could probate the copy of the will. Under CA law, a surviving spouse may ALWAYS elect to take her intestate share of the estate, called an "elective share." If the wife didn't appear in the will, she is still entitled to her intestate share of the estate -- you cannot disinherit your wife in California, except in extremely limited circumstances where there has already been extensive gifting and estate planning. Even if the wife WAS in the will, if she was willed less than what she would have gotten under intestatcy, the wife can always choose to get an elective share.

So, in this case, even if you did probate a will, it wouldn't change what the wife would get.

3. Do the children have a right to open a probate case this late after the death (and an executor hearing has already taken place), seeing as they were his children?

Maybe. You'll probably need to get a lawyer involved anyway, so now might be the right time to start.

4. Is it too late for any action?

Legally? No. Practically, though, if there were never significant assets to begin with, or if the wife has already spent all of the assets from the estate, it might not be worth it.

Try and find a CA attorney who is actually familiar with California probate laws, and take it from there. You can contact the California Bar Association for a referral, or, if you know what county the person died in, you can contact the county bar association (if there is one) for the particular county for a referral.