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Christopher B, Esq
Christopher B, Esq, Attorney
Category: Estate Law
Satisfied Customers: 2982
Experience:  Litigation Attorney with education focus on estate planning and tax
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I am the landlord and mother. My son died intestate 2 weeks

Customer Question

I am the landlord and mother. My son died intestate 2 weeks ago. Possessions were personal plus auto. No real estate. No children. Married 1 year before beginning divorce proceedings. Separated for last year of marriage. Wife claiming 100% ownership of all his possessions. Wife's probate attorney is deceased husband's former divorce attorney.
Wife is arriving tomorrow, Sat. June 27 to pick all his possessions up. I have still not seen an order of the probate court authorizing distribution of husband's property to wife.
Must I allow her access without some official distribution form?
Submitted: 2 years ago.
Category: Estate Law
Expert:  Christopher B, Esq replied 2 years ago.
Were they legally separated? Also does the "wife" have legal access to the home? Did she ever live there? If so, how long ago?
Expert:  Christopher B, Esq replied 2 years ago.
My name is***** and I will be helping you with your question today. This answer is for informational purposes only and does not create an attorney-client relationship.
474.010. All property as to which any decedent dies intestate shall descend and be distributed, subject to the payment of claims, as follows:
(1) The surviving spouse shall receive:
(a) The entire intestate estate if there is no surviving issue of the decedent;
So unless there was a legal separation or pending divorce, the spouse would get 100% of the assets with no children. If the couple had separated before one spouse died, or if one person had begun divorce proceedings, a judge may have to rule on whether or not the surviving member of the couple is considered a surviving spouse.
It sounds as though that this estate might be eligible for a small estate certificate. If a decedent’s estate is valued at less than $40,000, a small estate certificate may be obtained 30 days after the decedent’s death by a distributee without going through the full probate process. The distributee, called an “affiant,” must file an affidavit promising to use the decedent’s assets to pay debts and distribute the property according to law. Publication is required unless the estate is valued at less than $15,000. Surviving spouses and the decedent’s minor children can file what are called “refusals of letters” to have their statutory allowances paid from a decedent’s estate if the estate is valued at a lesser amount than the allowances. Determination of heirship can be accomplished if, within a year of the date of death, no probate estate was opened and no will presented for probate. A petition may be filed to obtain a judgment determining heirship.
Therefore I would recommend you file a Petition if there was a legal separation or pending divorce proceeding in order to disqualify the wife from intestate succession. As landlord, if the "wife" doesn't have the legal right to enter the premises, you don't have to allow access unless she produces a Court order for access to certain property. If she does have a legal right then you probably can't deny her access. If she unlawfully disposes of the assets and the Judge find that she would take nothing under the law, then the heirs would have a legal cause of action against her for the value of the property that was wrongfully taken.
Please let me know if you have any further questions or require any additional guidance. Please do not forget to positively rate my answer as this is the only way that I am compensated for my work.