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LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 7403
Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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My son died suddenly, can,t find a will or trust, but wife

Customer Question

my son died suddenly, can,t find a will or trust, but wife may have hid one, his children and I have questions as to why she hasnt filed for probate. He had properties and bank accts. that have never been privy to his nest of kin . What action can we advamce to get final ans. ??
Submitted: 1 year ago.
Category: Estate Law
Expert:  LegalGems replied 1 year ago.
My goal is to provide great service - if you have any questions, please ask. A follow up consult with a personal attorney is always recommended.
My sympathies for your family's loss; a few minutes please as I look into this for you.
Expert:  LegalGems replied 1 year ago.
Thanks for your patience.
The following is CA's probate code, with explanations to follow:
8001. Unless good cause for delay is shown, if a person named in a
will as executor fails to petition the court for administration of
the estate within 30 days after the person has knowledge of the death
of the decedent and that the person is named as executor, the person
may be held to have waived the right to appointment as personal
representative.
So the executor is the decedent's personal representative for legal purposes, and if the decedent left a will, the executor needs to file it within 30 days of death. Failure to do so can result in sanctions, along with the court removing that person from their role as executor (breach of fiduciary duty).
While there is no registry pre-death for wills in CA, one can determine if there was in fact a will by contacting local attorneys, or making a formal request (preferably by an estate law attorney) requesting a copy of the will.
One can determine if there is a trust by going to the county where the decedent owned property, and looking at the title of the property. If property is held in trust, the deed/title will reflect the name of the trustee and the name of the trust, as opposed to the single name of the decedent.
If there is no will or trust, then the property generally passes via intestate succession.
This means that community property goes to the surviving spouse, with separate property being divided between the spouse and children.
It is possible that property, by virtue of the manner in which it is held, passes by operation of law to the named beneficiary. This type of property includes
•life insurance proceeds
•funds in an IRA, 401(k), or other retirement account
•securities held in a transfer-on-death account
•payable-on-death bank accounts
•vehicles held by transfer-on-death registration, or
•property you own with someone else in joint tenancy or as community property with the right of survivorship.
An attorney that specializes in estate law will be able to help determine if there was a trust, or if the above provisions apply (operation of law).
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Expert:  LegalGems replied 1 year ago.
Here is a link to help locate an attorney:
www.findlegalhelp.org and http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm
Of course, should you have other questions please do not hesitate to post here.
If you found the information I provided useful, kindly rate positive as that is the only way the site is allowed to credit me so that I am compensated for the time I spent- which does not result in additional charges to the customer.
Thank you for extending this courtesy as I am an individual contributor so ratings are quite important , and take care!