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John Legal
John Legal, Attorney
Category: Legal
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Experience:  Over 15 years legal experience.
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My parents are in their 70s and my dad has lung cancer but

Customer Question

My parents are in their 70's and my dad has lung cancer but refuses all treatment and we don't know yet how much time he has left. They do not have any sort of a will or anything. I was planning on helping my mother put together a living trust after my father has past because trying to get them to agree on things is like pulling teeth. I thought that everything would go to my mother with no probate issues or anything upon my fathers passing. But I have since heard that that my not be true without a Tenancy by the Entirety or Tenancy in common or some kind of paperwork like that completed. My parents live in California and everything they have is in both their names I think. Could you please advise me on what we need to do and how to go about it so that every thing just goes to my mom upon my fathers passing. Thanks, XXXXX XXXXXXXX@XXXXXX.XXX
Submitted: 2 years ago.
Category: Legal
Expert:  John Legal replied 2 years ago.
Thanks for trusting Just Answer. As an attorney I will answer as clearly as possible. I ask for you Accept my answer so I am paid when we are done.

California is a community property state. Any assets that are owned by both of your parents is considered 50% owned by each of them. Your father's 50% ownership will pass by intestate succession law if he has no will. The following is California Intestate succession law:


6400. Any part of the estate of a decedent not effectively disposed of by will passes to the decedent's heirs as prescribed in this part. 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 or surviving domestic partner, as defined in subdivision (b) of Section 37, 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.

I am cannot provide you with specific legal advise. I can provide you with general information about the law related to your inquiry. I hope you find my response helpful, please click on the ACCEPT button. This is necessary for me to be paid for my work assisting you. Clicking Accept will not close your question. You can still ask, and I will respond, to follow-up questions if needed. Leaving a bonus and positive feedback is not required but they are appreciated!

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Customer: replied 2 years ago.
We do not want anything going to us kids. How do I make sure that it all just goes to my mom without any problems
Expert:  John Legal replied 2 years ago.
He must make a valid will in California that leaves her all of his property.

Here is a simple will form from the California state Bar: http://www.calbar.ca.gov/Public/SimpleWill.aspx
Customer: replied 2 years ago.
Thank you, XXXXX XXXXX simple will all we need ? Just want to make sure that there is no probate involved ? The forms that I read about are not required ? ( Tenancy by the Entirety or Tenancy in common.
Expert:  John Legal replied 2 years ago.
That is all that is necessary to make sure his assets pass completely to her. There will be probate involved. The only way to prevent that is to use a revocable living trust. That is far more complex. I would never suggest doing a revocable living trust on your own. I would also suggest using an experienced estates attorney if you are doing a revocable living trust.

When talking about tenants by entirely or tenants in common becareful on how ownership works as it is entirely different in California.

The will, if executed property will assure that ALL property completely passes to your mother.
Customer: replied 2 years ago.
Thank you, XXXXX XXXXX will need to be filed with anybody like the state ?
Expert:  John Legal replied 2 years ago.
Not filed until after death. It would then need to be filed with the probate court.

Please click the Accept button so that I receive credit.
John Legal, Attorney
Category: Legal
Satisfied Customers: 4631
Experience: Over 15 years legal experience.
John Legal and 13 other Legal Specialists are ready to help you
Customer: replied 2 years ago.
Thank you John You have been very helpfull
Expert:  John Legal replied 2 years ago.
Thank you for your questions. Please ask for me if you have questions in the future. All you have to do is start your question "Dear John..."

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