My name is***** and I will be helping you with your question today. This is for informational purposes only and does not establish an attorney client relationship.
First of all, I am sorry for your loss. Secondly, if there is no will found, then the property will pass through intestate
succession (according to California law) and as long as there was not another spouse and the ex wife was that by law then the child would inherit everything. Since the child is a minor then the ex wife would probably receive everything in order to distribute it to the child as the guardian. As for the executor, California gives the following as priority:Probate
Code Section 8461. Here’s the order of priority:
(a) Surviving spouse or domestic partner.
(d) Other issue.
(f) Brothers and sisters.
(g) Issue of brothers and sisters.
(i) Issue of grandparents.
(j) Children of a predeceased spouse or domestic partner.
(k) Other issue of a predeceased spouse or domestic partner.
(l) Other next of kin.
(m) Parents of a predeceased spouse or domestic partner.
(n) Issue of parents of a predeceased spouse or domestic partner.
(o) Conservator or guardian of the estate acting in that capacity at the time of death who has filed a first account and is not acting as conservator or guardian for any other person.
(p) Public administrator.
(r) Any other person.
Since the child is a minor and the ex wife is no longer consider your brother's spouse, your parents if living would have first priority (they do not have to take this on if they do not choose), then you as the sibling would be next. Although there is a possibility that the ex wife could be appointed as thee executor under the following provision:
Probate Code Section 8464. If a person otherwise entitled to appointment as administrator is a person under the age of majority or a person for whom a guardian or conservator of the estate has been appointed, the court in its discretion may appoint the guardian or conservator or another person entitled to appointment.
The family (spouse first (ex would not count), then minor child) is due some family allowances during the administration of the estate under Probate Code Section 6540 and 6542 but as you can see from the statute, it is only after probate is initiated and the court orders it. Therefore I would not sign a thing and if you think the ex wife is up to something funny, I would petition the court to be executor of the estate. If there is a will then I would try to locate it ASAP. No one should be invading the assets of the estate unless accomplished through proper avenues.
Probate Code Section 6540. (a) The following are entitled to such reasonable family allowance out of the estate as is necessary for their maintenance according to their circumstances during administration of the estate:
(1) The surviving spouse of the decedent.
(2) Minor children of the decedent.
(3) Adult children of the decedent who are physically or mentally
incapacitated from earning a living and were actually dependent in
whole or in part upon the decedent for support.
(b) The following may be given such reasonable family allowance
out of the estate as the court in its discretion determines is
necessary for their maintenance according to their circumstances
during administration of the estate:
(1) Other adult children of the decedent who were actually
dependent in whole or in part upon the decedent for support.
(2) A parent of the decedent who was actually dependent in whole
or in part upon the decedent for support.
(c) If a person otherwise eligible for family allowance has a
reasonable maintenance from other sources and there are one or more
other persons entitled to a family allowance, the family allowance
shall be granted only to those who do not have a reasonable
maintenance from other sources.
6542. A family allowance commences on the date of the court's order
or such other time as may be provided in the court's order, whether
before or after the date of the order, as the court in its discretion
determines, but the allowance may not be made retroactive to a date
earlier than the date of the decedent's death.
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