My mother recently passed away leaving her house to us 3 adult children. We have a brother who died last year and he wanted his share to go to only one of his 4 children. We do not have that in writing. We are now doing the parent/child transfer. If we only list my brother's one child will the county clerk research this and find out he has other children? He has not seen or heard from the other 3 children in many years. We do not even know where 2 of them are? My basic question is: Can we get away with only listing 1 child for my deceased brother's share?
State/Country relating to question: California
Hello,If the case is going through probate, the executor or administrator (if there was no will) is legally obligated to follow the terms of the will or state law regarding the decent of any bequests to beneficiaries. If brother passed unmarried and had children, then his share would decend to his children equally unless a will stated differently..So whoever is settling the estate has a legal duty to track down the other children so as to ensure that the probate laws are followed. If the whereabouts of an heir remain unknown when the court approves the petition for distribution of assets of the estate, the state holds the heir's share of property. The California Probate Code requires the executor to deposit the property with the county treasurer in the name of the missing heir. The missing heir's inheritance appears on the list published by the California Controller of Unclaimed Property. The heir claims the property by petitioning the probate court for an order releasing it to him..So the long and short of it is no, you can't only list one heir if there are others who are known..
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Thank you for getting back to me. It is not going through probate. The is a will and a living trust in our names. Since it is a trust can we list only one child? Does the county clerk check for more children or would they accept how I fill out the forms?
Ok, was the house already in the trust before mother's death, which would have required a transfer via deed from mother to trust?.Or was it still in mother's name with a "pour over will" directing that it be placed into the trust?
It already is in the trust.
Ok, then it is up to the trustee to distribute the trust assets according to the terms of the trust. If the trust states to all 3 children equally, and one child has passed, that share passes down to the deceased's heirs at law. The trustee has a legal and fiduciary duty to the trust to follow the law regarding the decent and distribution. If trustee fails to do so, they can later be personally sued by any heirs that were intentionally left out of any distribution..So whoever is trustee takes a big risk if other heirs show up later asking what happened to the house if they don't follow the law.....But the clerk does not inquire into the number of heirs listed on the deed, they just check to see that the deed is properly executed and record it..
12 years real estate, Realtor. Landlord 23+ years
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