My wife's father recently passed away. My wife's parents are divorced and both parents remarried. The step-mother is about 12 years younger than my father-in-law who passed at 83. My wife has no information about the estate, but at one time there were many rental properties that he mentioned to us in the context of how busy he was and what a tax burden it was due to the cash flow he had from month to month. What are my wife's rights to learn about the estate of her father? We don't know if a will or trust was involved.
Thank you for trusting Just Answer. I will answer as clearly as possible.It is still pretty recent. There is not generally a "reading of the Will" like you see on TV, just to let you know. Anyone in possession of the Will is required to disclose it. However, the spouse is the only one that has a right to administer the estate at the moment, even if there is not a will. The children are second in line. Here is the priority statute:8461. Subject to the provisions of this article, a person in the following relation to the decedent is entitled to appointment as administrator in the following order of priority: (a) Surviving spouse or domestic partner as defined in Section 37. (b) Children.If there is no will then the estate will pass by intestate succession law in CA. 6400. Any part of the estate of a decedent not effectively disposed of by will passes to the decedent's heirs as prescribed in this part. 6401. (a) As to community property, the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent under Section 100. (b) As to quasi-community property, the intestate share of the surviving spouse is the one-half of the quasi-community property that belongs to the decedent under Section 101. (c) As to separate property, the intestate share of the surviving spouse or surviving domestic partner, as defined in subdivision (b) of Section 37, is as follows: (1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister. (2) One-half of the intestate estate in the following cases: (A) Where the decedent leaves only one child or the issue of one deceased child. (B) Where the decedent leaves no issue but leaves a parent or parents or their issue or the issue of either of them. (3) One-third of the intestate estate in the following cases: (A) Where the decedent leaves more than one child. (B) Where the decedent leaves one child and the issue of one or more deceased children. (C) Where the decedent leaves issue of two or more deceased children.
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Is there a timeframe relating to the comment in your 1st paragraph, "Anyone in possession of the will is required to disclose it.". Presumably the step-mother or possibly her lawyer are in possession of a will, and if so they must disclose it, but when. Is it within 60 days? Or 90? Thank you for you're first response and thank you in advance for you follow-up reply!
Sorry for the delay. I had logged off for the evening.The timeframe is 30 days. You are getting close, but not quite there yet.8200. (a) Unless a petition for probate of the will is earlier filed, the custodian of a will shall, within 30 days after having knowledge of the death of the testator, do both of the following: (1) Deliver the will to the clerk of the superior court of the county in which the estate of the decedent may be administered. No fee shall be charged for compliance with the requirement of this paragraph. (2) Mail a copy of the will to the person named in the will as executor, if the person's whereabouts is known to the custodian, or if not, to a person named in the will as a beneficiary, if the person' s whereabouts is known to the custodian. (b) A custodian of a will who fails to comply with the requirements of this section is liable for all damages sustained by any person injured by the failure. (c) The clerk shall release a copy of a will delivered under this section for attachment to a petition for probate of the will or otherwise on receipt of payment of the required fee and either a court order for production of the will or a certified copy of a death certificate of the decedent.
So the law states in 8200 that the will will be delivered to the clerk of the superior court in the county (Orange County, CA) and a copy will be mailed to the executor. So either the clerk of the court will contact my wife if she's named in the will or the executor of the will, will contact my wife. What are my wife's rights if she does not receive that contact?My additional question relates to Trusts. I have heard that if a trust is involved, then the timeframes are different and could potentially not even exist.
If your wife receives nothing in 30 days then she can file for probate. With the will if she can locate the will or without the will if she does not have a will. She would have to file the will in the probate court.As for the trust questions. i would be happy to answer them. The site rules require separate questions to be asked in separate question boxes. If you want to request me for that follow up question just start your question with "Dear XXXXX..."John Elder41035.642508831
Dear XXXXX,My basic understanding of trusts are that within a trust most anything can be stipulated. My wife & I have a will & a revocable trust and I understand it and why. Since I don't have any specifics about my wife's father's estate I think we need to wait until we see the will (30 days) and see what it says. I appreciate your help and responses!
Hi John,Today is May 29th and as this point, we still have not received any notice of a will or trust. In one of your early answers you indicated a 30 day notice. This section below was your response to my question about notice time-frame.The time-frame is 30 days. You are getting close, but not quite there yet.8200. (a) Unless a petition for probate of the will is earlier filed, the custodian of a will shall, within 30 days after having knowledge of the death of the testator, do both of the following: (1) Deliver the will to the clerk of the superior court of the county in which the estate of the decedent may be administered. No fee shall be charged for compliance with the requirement of this paragraph. (2) Mail a copy of the will to the person named in the will as executor, if the person's whereabouts is known to the custodian, or if not, to a person named in the will as a beneficiary, if the person' s whereabouts is known to the custodian. (b) A custodian of a will who fails to comply with the requirements of this section is liable for all damages sustained by any person injured by the failure. (c) The clerk shall release a copy of a will delivered under this section for attachment to a petition for probate of the will or otherwise on receipt of payment of the required fee and either a court order for production of the will or a certified copy of a death certificate of the decedent.So now that we have waited past the 30 days, with no communication, what actions should we take?
Your wife can go down and file for estate administration with the Will that she has or if she does not have a will based on intestacy law.