Estate Law Questions? Ask an Estate Lawyer.
Hi; My goal is to provide you with great service - if you have any questions during our chat, please ask! I'll do my best to ensure your satisfaction! I am very sorry for your recent and unexpected loss. You are trying to determine if her mother can get your step daughter's inheritance from her step-father. Would that be correct?
the inheritance is from her father ( my late husband)
I see. Since she died without a will, and survived her father for more than 72 hours, the inheritance would go to her estate, and pass through the laws of intestate succession. According to Probate Code section 38-45, if the individual has no children, it then goes 50% to the surviving parent, with 50% to surviving siblings. It is possible that her father's will had a provision requiring a survival period of longer than 72 hours or contingencies upon the inheritance, such as requiring the heir (your step daughter) to pass any remaining inheritance to a certain designated beneficiary upon her passing. Unfortunately, generally those are not common provisions, but it is worth checking the father's will to verify that is not the case.
the father had no will and there is not a lot of money involved less than 10thousand, we are in the middle of probate
If the father had no will, then the daughter's intestate share would go to her heirs, as the inheritance became a part of her estate as long as she survived longer than 72 hours past her father.
As for the father's estate, this would be distributed as follows:
Separate real property: life estate of 1/3 to surviving spouse, remainder to children (as remaindermen). 2/3 outright ownership to children.
Separate personal property: 1/3 to surviving spouse; 2/3 to children
Community property: 1/2 to surviving spouse, 1/2 to children
Thank you my attorney isn't a probate attorney not sure if he is familiar with that law because he says half of everything for spouse and the other half is split 1/3 to each child
You can have him review the probate codes. Please see section 38 et seq as that covers the relevant codes.