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if a spouse dies before a divorce is final and there is no will and only property is a har

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ley and car which the...
if a spouse dies before a divorce is final and there is no will and only property is a har ley and car which the one that died had what rights do I as living spouse have which we bought actually I was the buyer and him co buyer of both the items, he has 2 kids 22,24 in college. and I am on SSI from congential heart condition his daughter and I have tried to arrange to pick up the harley from where he was living with his sister and paid rent, but she wont let us access. she also has lied about a SUV he bought off her and paid for its in his name and insured to, but I believe the paper work is in his room, Do I have the legal right if needed to just take a police officer with me to just grab his stuff out of his room and the harley and leave, she also claimed he stopped paying his life insurace over a year ago, however he was dating one of my really good friends and she says they were just talking about all this kind of stuff, his death was a shock he had a heart attack, and I had seen hi
Submitted: 6 years ago.Category: Estate Law
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5/13/2011
Estate Lawyer: N Cal Attorney, Attorney replied 6 years ago
N Cal Attorney
N Cal Attorney, Attorney
Category: Estate Law
Satisfied Customers: 9,436
Experience: Since 1983
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Which State did this happen in?
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Customer reply replied 6 years ago
san jose california and it was on april 8th, he and I agreed that if anything ever happened to him to make sure his kids get what ever he has which is not much I know I have to wait 40 days to put the car and bike back in my name, and that will be the 18th I already have the paper work from DMV for transfer without probate, and I do have the title to the car just not the Harley and his sister wont let no one in his room, his daughter tried, and i want to just have a domestic standby and just go and grab his stuff in his room and leave his sister is a sneaky selfish self centered person, also I have both kids wanting and asking me to handle this for him, cause I know what he wanted to happen when he died.
Customer reply replied 6 years ago
CALIFORNIA san jose california and it was on april 8th, he and I agreed that if anything ever happened to him to make sure his kids get what ever he has which is not much I know I have to wait 40 days to put the car and bike back in my name, and that will be the 18th I already have the paper work from DMV for transfer without probate, and I do have the title to the car just not the Harley and his sister wont let no one in his room, his daughter tried, and i want to just have a domestic standby and just go and grab his stuff in his room and leave his sister is a sneaky selfish self centered person, also I have both kids wanting and asking me to handle this for him, cause I know what he wanted to happen when he died. Edit
Estate Lawyer: N Cal Attorney, Attorney replied 6 years ago
I'm sorry to hear about this.

As his surviving spouse, you are entitled to appointment as administrator of the Estate but his sister has a higher priority if you were living separate and apart.

Were you living separately? What stage was the divorce proceeding at?
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Customer reply replied 6 years ago
ok first he also lived up here with my roommate and I on the ranch he actually had his own little house that he and my roomate built here. than he moved to back to town cuz it was to far to commute, so he had been living with his sister for a little over a year and a half. we have been living seperately since 2004, but like I said he has a lot of his stuff stored here, and he also was my best friend, I was his, the divorce was started in 2007, but the final paper to enter default, was denied on the day he passed away due to I needed to refile some updated forms or something like that, so basically I had to start the divorce process all over again. what rights do his kids have. my only concern is for the kids he did not have much but what he had he wanted his kids and only the kids to have. he also had a suv that he paid his sister, along with a trailer, but his sister filed bank ruptcy on and wiped the debt out, but he still payed her for it, and the aunt has lied and said he did not pay for it, and she told the bankruptcy people wehe to find the trailer so they did take that, his sister wont let the kids go in the house to get thier dads personal stuff. can I legally make her allow me to do it.
Estate Lawyer: N Cal Attorney, Attorney replied 6 years ago
The California intestacy laws are summarized at
http://www.mystatewill.com/statutes/ca_law.htm

Are any of his children over 18?
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Customer reply replied 6 years ago
yes they are both over 18 one is 22 and one is 24 and both going to college
Estate Lawyer: N Cal Attorney, Attorney replied 6 years ago
Probate Code § 8461 posted at
http://leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=08001-09000&file=8460-8469
gives the adult children first priority to be appointed as administrator or to nominate you as administrator. Once an administrator is appointed by the Court, the administrator will have the legal power to seize all assets of the Estate.

You can get a free consultation from some of the probate lawyers listed at
http://lawyers.findlaw.com/lawyer/firm/Probate-&-Estate-Administration/San-Jose/California

I hope this information is helpful.
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Customer reply replied 6 years ago
thank you one or two more questions, im ok with the kids taking care of everything as long as they get to do it they are getting resistance from the aunt like not bieng allowed to go in thier fathers room and get his belongings, before she goes through the room herself, I feel that is wrong, both kids have asked me to do and help in any way I can, they are so emotionally drained and stressed going through thier finals and than thier dad dies, like I said most of his belongings like photos and stuff like that are actually in a trailer stored up here at my house which where he brought them for safe keeping, its just the car and motorcycle that we are concerned about they are both completly paid off, and in his name and insured, than the SUV he paid his sister for is also in his name and insured, however the aunt is telling the kids he never paid for it, and since it was wiped out when she filed bankruptcy, she dont have nothing to pay on it anyhow, and he did pay her for it, how can we prove that if the paper work to prove it is in his room and she wont allow access his daughter asked her and she said no I havent had the chance to go through it yet, she dont need to its not her stuff its his and he was a grown 54 year old man, and all he wanted was for his kids to have what little he had. is there a way to find out about the suv bieng in his name. before she gives it away. and can the IRS go after the bike for taxes he owed which they had garnished his wages for, they were close to bieng paid off, but I know he owed no where near what the harley is worth,I paid over 34 grand for that bike, and I want his son to have it, is there a way to prevent the IRS from taking it and gettting it into his name. I know because I am on SSI that they go after me I have nothing, I have my name on a car my friend owns so I can drive it but im not the owner. and I know im allowed one vehicle on ssi, i know i could put it in my name after he has been gone for 40 days, but like I said one thing a Harley does is hold its value, and he does not owe that much in taxes , I know you can not say hide it, but that is a thought. we just want to get it safe and in my name or his sons name so it wont be taken by IRS. like I said his estate is a no probate case his assets do not come close to bieng the 100 grand they say has to be to have to go through probate. The kids and I are in constant contact. aslo is thier a way to find out if he had a private life insurance policy because him and his girlfriend had discussed it and he had also mentioned to his son that he was very adament about making sure he left his kids with a little something.
Estate Lawyer: N Cal Attorney, Attorney replied 6 years ago
If the holder of the property refuses to honor an affidavit (assuming that it is not
defective), the affiant may file a statutory action against the holder to compel
payment, delivery or transfer of the property.
From
http://www.lasuperiorcourt.org/probate/pdf/transferform.pdf

Someone has to go through his papers to see if there was a life insurance policy.
N Cal Attorney
N Cal Attorney, Attorney
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Estate Lawyer: N Cal Attorney, Attorney replied 6 years ago
Thank you for accepting my answer, and thank you very much for the bonus!
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Customer reply replied 6 years ago

You are very welcome and thank you all the property has been handled the children have his belongings which is what I wanted

 

Michele Matts

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Estate Lawyer: N Cal Attorney, Attorney replied 6 years ago
I'm glad to hear this was resolved satisfactorily.
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