Grandfather has passed; does my Grandmother have any rights in will?

[Laurenmike415]

What is the name of your state (only U.S. law)? California.
This is a bit of a complicated situation, and before my family and I pursue getting more involved I wanted to reach out and see if it's worth fighting for. My grandfather has just passed, and before doing so restructured his will leaving his sister as the estate executor. He was still legally married to my Grandmother, who for medical purposes had to be removed from the will because she is in a rest home (I guess there are legal complications with having assets and being on Medi-Cal?). Now that my grandfather is deceased, his sister and her son are basically saying that my grandmother has no legal rights whatsoever to any of the assets (which I find interesting considering they spent over 30 years together and acquired many things in tandem). Can this be true? If this were the case, in the event that she recovers and gets out of the rest home, she would have no home to go back to. They are also attempting to get rid of all of their belongings which I find extremely aggravating and unjust. Since she was still legally married to my grandfather, does she have any rights at all? She has requested a copy of the actual will which has yet to be sent, but I can't imagine that she would be excluded completely. My family and I are in serious need of direction, any guidance is appreciated!

 

[Ohiogal]

What is the name of your state (only U.S. law)? California.
This is a bit of a complicated situation, and before my family and I pursue getting more involved I wanted to reach out and see if it's worth fighting for. My grandfather has just passed, and before doing so restructured his will leaving his sister as the estate executor. He was still legally married to my Grandmother, who for medical purposes had to be removed from the will because she is in a rest home (I guess there are legal complications with having assets and being on Medi-Cal?). Now that my grandfather is deceased, his sister and her son are basically saying that my grandmother has no legal rights whatsoever to any of the assets (which I find interesting considering they spent over 30 years together and acquired many things in tandem). Can this be true? If this were the case, in the event that she recovers and gets out of the rest home, she would have no home to go back to. They are also attempting to get rid of all of their belongings which I find extremely aggravating and unjust. Since she was still legally married to my grandfather, does she have any rights at all? She has requested a copy of the actual will which has yet to be sent, but I can't imagine that she would be excluded completely. My family and I are in serious need of direction, any guidance is appreciated!

They are wrong. Grandmother is entitled to the intestate share and if she DOES NOT take it, she can be penalized. So his sister and her son are completely wrong. Someone needs to file in probate court and get granny an attorney to take her intestate share.

 

[Laurenmike415]

They are wrong. Grandmother is entitled to the intestate share and if she DOES NOT take it, she can be penalized. So his sister and her son are completely wrong. Someone needs to file in probate court and get granny an attorney to take her intestate share.

Thank you for this and I will indeed research. My mom (grandmother's daughter) is going to pursue on her behalf. But I'm curious if what you mentioned above applies if my grandmother was removed from the will due to the fact that she couldn't have any assets in her name because she is on Medi-Cal. I suspect at this point because she is the legally married wife, that might trump the will and the estate executors wishes? I have no idea, but our family has been through a similar situation (in that case, there was NO will) but the wife got EVERYTHING, not matter what. I believe the wife has more power than suspected, so that's why I'm asking.

 

[Ohiogal]

Thank you for this and I will indeed research. My mom (grandmother's daughter) is going to pursue on her behalf. But I'm curious if what you mentioned above applies if my grandmother was removed from the will due to the fact that she couldn't have any assets in her name because she is on Medi-Cal. I suspect at this point because she is the legally married wife, that might trump the will and the estate executors wishes? I have no idea, but our family has been through a similar situation (in that case, there was NO will) but the wife got EVERYTHING, not matter what. I believe the wife has more power than suspected, so that's why I'm asking.

Being the legal spouse trumps the will -- again she can take her intestate portion. If she doesn't, she can be penalized for the same.

 

[latigo]

What is the name of your state (only U.S. law)? California.
This is a bit of a complicated situation, and before my family and I pursue getting more involved I wanted to reach out and see if it's worth fighting for. My grandfather has just passed, and before doing so restructured his will leaving his sister as the estate executor. He was still legally married to my Grandmother, who for medical purposes had to be removed from the will because she is in a rest home (I guess there are legal complications with having assets and being on Medi-Cal?). Now that my grandfather is deceased, his sister and her son are basically saying that my grandmother has no legal rights whatsoever to any of the assets (which I find interesting considering they spent over 30 years together and acquired many things in tandem). Can this be true? If this were the case, in the event that she recovers and gets out of the rest home, she would have no home to go back to. They are also attempting to get rid of all of their belongings which I find extremely aggravating and unjust. Since she was still legally married to my grandfather, does she have any rights at all? She has requested a copy of the actual will which has yet to be sent, but I can't imagine that she would be excluded completely. My family and I are in serious need of direction, any guidance is appreciated!

In the first place this is not a case of intestate succession. Grandpa did not die intestate! So ignore the references to grandma's intestate share! *

Secondly there will be an evidentiary presumption that all that all that these people accumulated over the 30 years is community property to which each owned and undivided one half.

The consequences being that grandpa could do as he wished with HIS half, but he cannot will away HER half. Her half of the community property is vested and not subject to disposition by his will.

However, you and other family members concerned over protecting grandmother's interest, must act quickly. Probate laws give the personal representative of the estate (a/k/a executor) broad powers that can be easily abused. I recommend that you speak to an estate lawyer as soon as practical. And if sister has not been appointed PR, I would have you formally object to it. But snooze and you lose.
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[*] The fact, or perhaps irony, is that grandma would be better off property wise if grandpa did pass without a will. Then she would have her half plus one half of his half. (Cal Probate Code 6401(a)

And don't worry about the assets being characterized as community property. Not those that they accumulated together and cannot be readily earmarked as sole and separate. No one at this late date is apt to step forward with evidence to overcome the presumption.