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LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 7441
Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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Does my mom have any claim to her recently deceased husband

Customer Question

Does my mom have any claim to her recently deceased husband of 22 years estate over his children. It probably amount to around 250,000 in stocks, cash and some real estate. There is no will that we know of. She just needs some help with assisted living for what time she has left.
Submitted: 2 months ago.
Category: Estate Law
Expert:  LegalGems replied 2 months ago.

Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

Expert:  LegalGems replied 2 months ago.

My sympathies for your mother's loss;

fortunately, CA is a community property state; what this means is that the surviving spouse is entitled to 1/2 of the community property of the decedent, since both parties each owe 1/2 of the community property estate.

Community property is all property acquired during marriage, such as income; it excludes gifts/inheritance, or money that is a result of separate property (ie rents from a house owned prior to marriage, provided the house was not refinanced during the marriage, or the individual did not spend significant time managing the property-because the community has an interest in any activity that resulted in income for time spent during the marriage, since the community "owns" that time).

If there is no will, then the person died intestate.

Under the laws of intestate succession, this is how the probate court will disburse the property; it is even more generous as if there was a will, the decedent could have given his 1/2 of the community property to anyone as he saw fit; but since there is no will, the intestate statute (below) governs:

basically, the surviving spouse is entitled to all of the community property, and 1/2 to 1/3 of the separate property, depending on the number of children of the decedent (if only 1 child, then the spouse gets 1/2 of the separate property; if more than 1 child, the spouse gets 1/3 of the separate property).

Probate must be filed; and generally the surviving spouse is appointed as executor. It is a good idea to hire a probate attorney that way the attorney can deal with the children (if the children try to do anything unlawful, there are severe penalties, which can include treble damages for economic damages suffered).

Further questions? Please post here to continue the chat. Satisfied? Kindly rate positively so I receive credit for assisting you. I hope that you feel I have earned5 stars *****as I strive to provide my customers with great service.(no additional charges are incurred). Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.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 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.
Expert:  LegalGems replied 2 months ago.

Hi- just checking in to see if you needed clarification on any of the above information. If so please post here (there is no additional charge for this) and I will do my best to get you the requested information.

Thank you!

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