Ask an Estate Law Question, Get an Answer ASAP!
The actors in a California Trust. 1. Brother 1 – recently deceased, brother in law to my mother. His wife is also deceased. They had no children. 2. Brother 2 married to my mother for 35 years. Brother 1 contested his brother’s inheritance, claiming his brother was mentally incompetent as a 100% disabled Viet Nam vet. 3. Mother of brother 1 & 2 loved both sons equally and might have stated that in her will which I am awaiting from the LA Superior Court. The trust is in both mother's and brother's 2 names. Brother 2 did not fight brother 1 for his rights. He had neither the power nor resources to do so. 3. Nephew (brother 2 had a son before he married my mother). We didn’t find out about him until the Trustee lawyer informed us. Neither of the two brothers had a relationship or contact with the boy. 4. Trustee Lawyer. Question: The trustee lawyer said that my mother, who lives in Colorado, is not an heir by law & that the nephew is. He said he has sent notice to the nephew; however, will not say whether he’s sending notice to my mother. However, based on the fact that brother 1 built a small empire on his inheritance and the inheritance he stole from his brother (my mother’s deceased husband), might my mother be included as a rightful heir? Also, her husband (brother two) raised five stepchildren (including me), but never legally adopted them. The trust makes no provisions for the nephew or for my mother.
If you need further help, just reply to me via the “REPLY” button and I will be happy to continue.
I cannot enter into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. The information provided is not a substitute for a local attorney’s legal advice.
A couple hours ago, I asked you if my mother was a rightful heir to her brother-in-law's trust because he (brother 1) stole his brother's (my mother's husband, brother 2, also deceased, ) inheritance. You said brother 1's nephew (from my mother's husband, i.e., brother 2) was an heir by law, but not my mother. What about brother 2's stepchildren that he raised? I'm asking because I found that "Foster & stepchildren CAN inherit if the relationship started when the children were minors & continued throughout a lifetime."
Thank you for your help....
First, the trustee lawyer hasn't said whether the trust is revocable or irrevocable. Shall I send him an email and tell him that Don, the younger brother (brother 2) had stepchildren?
Next, I don't yet know if there is a will the mother might have left, nor do I know if there's a will that the older brother left (or his wife for that matter). I mailed a L.A. Superior Court for copies of those three wills if indeed they do exist. I'm still waiting as of 3 days ago....
Okay, I understand the order of heirs at law. However, and as noted, the older brother (1) did not make provisions for his nephew, for my mother, or for stepchildren of the younger brother (2) per the trustee lawyer.
The trustee lawyer also said that the nephew as nonetheless an heir by right and that the trustee sent notice to him. He also asked me to inform him of any other potential heirs; yet, I'm not sure if that would include my siblings and me.
Thus, should I or should I not send the names of stepchildren to the trustee?
I understand that the nephew has precedent...but am wondering if the stepchildren are nonetheless still entitled to portion of the inheritance.
I apologize for all these questions.... I shouldn't have any more after this.
Yes, there is no harm in doing so because if he put some directive in the trust that said "divide all assets by all heirs at law, regardless of priority" then stepchildren could inherit. I would list everyone and let the Trustee sort it out as to who inherits from the Trust.
You're amazing! Thank you for your help! Melony.
The trustee lawyer just informed me that the older brother's (brother 1) trust became irrevocable at death. The trustee lawyer also said that unless my stepfather (the younger brother/brother 2) adopted us, the trustee has no obligation to provide me or my siblings with notice. However, after reading the California Probate Code (it's copied & pasted after this question) I beg to differ, although I might be wrong. Here's why: my siblings & I should be heirs by laws, as is my step-dad's biological son (the blood nephew of the older brother/1) because my stepfather raised us during our entire childhood, never divorced my mom, & we got his VA benefits. He would have adopted us if not for his mental illnesses (PTSD & paranoid schizophrenia). Thus, shouldn't the trustee lawyer (of the older brother's estate) view the stepchildren as heirs by law (as much as the nephew by blood to the older brother) and send us notice, as well? He sent notice already to the nephew. By the way, NO provisions were made in the trust for either the nephew or the stepchildren.
California Probate Code, Section 21115, Last modified Feb.22, 2013.
(a) Except as provided in subdivision (b), halfbloods, adopted persons, persons born out of wedlock, stepchildren, foster children, and the issue of these persons when appropriate to the class, are included in terms of class gift or relationship in accordance with the rules for determining relationship and inheritance rights for purposes of intestate succession. (b) In construing a transfer by a transferor who is not the natural parent, a person born to the natural parent shall not be considered the child of that parent unless the person lived while a minor as a regular member of the household of the natural parent or of that parent's parent, brother, sister, spouse, or surviving spouse. In construing a transfer by a transferor who is not the adoptive parent, a person adopted by the adoptive parent shall not be considered the child of that parent unless the person lived while a minor (either before or after the adoption) as a regular member of the household of the adopting parent or of that parent's parent, brother, sister, or surviving spouse (c) Subdivisions (a) and (b) shall also apply in determining: (1) Persons who would be kindred of the transferor or kindred of a surviving, deceased, or former spouse of the transferor underSection 21110. (2) Persons to be included as issue of a deceased transferee underSection 21110. (3) Persons who would be the transferor's or other designatedperson's heirs under Section 21114. (d) The rules for determining intestate succession under thissection are those in effect at the time the transfer is to takeeffect in enjoyment.From: http://law.onecle.com/california/probate/21115.html
Section: Previous 21101 21102 21103 21104 21105 21107 21108 21109 21110 21111 21112 21114 21115 21117 21118 Next
Here’s something else: In California. In 1983, California enacted the first intestacy provision that creates a share for stepchildren regardless of whether other heirs exist. A stepchild can inherit if three requirements are met: (1) a parent-child relationship began while the child was a minor (the statute does not define “parent-child relationship);” (2) the parent-child relationship continued throughout the joint lifetimes of the child and parent, and (3) the parent would have adopted the child but for a legal barrier. After a split in the lower courts, the California Supreme Court interpreted this last requirement to mean that the legal impediment to adoption persisted until the parent’s death. See Estate of Joseph, 949 P.2d 472 (Cal. 1998). This interpretation significantly limits the utility of the statutory provision. After a stepchild reaches the age of majority, the stepchild herself can give permission for an adoption and in most cases a legal impediment to adoption will no longer exist. Of course, adoption of an adult stepchild, regardless of the closeness of the relationship, is unlikely. Unless the stepparent dies while the stepchild is a minor, the statute will have little impact.
All right then, and thank you... however, the trustee lawyer clearly stated that the trust made NO provisions for the nephew either. Nonetheless, the trustee is calling the nephew an "heir by law" and his uncle did not
put some directions as to who gets the assets.
I'm trying to figure out whether it is worth retaining a lawyer in the jurisdiction of CA.
Yes, it is unusual that he made provisions for no-one, including his nephew. You might be right, though about the younger brother, because the trust was in the mother's name as well as the older brother's name.
Everything you said was accurate and correct. I verified your feedback with more than one attorney in the jurisdiction of California. In other words, stepchildren are ineligible unless they're named in the trust or unless they were adopted. Another variable in a stepchild's favor is the relationship they shared with the deceased person named in the trust/estate. Moreover, if there are no other blood-related heirs by law, then stepchildren stand a chance of inheriting based on succession law.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).