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Bill Attorney
Bill Attorney, Lawyer
Category: Estate Law
Satisfied Customers: 1325
Experience:  Attorney
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My Dad recently passed away and he left no will He was

Customer Question

my Dad recently passed away and he left no will He was married to my mom for over 50 years she passed away 8 years ago. While she was alive they bought a house together and lived in it for over 30 years my Dad still lived in it but about 11/2 years ago he got married. I have 1 brother and there was talk numerous times that when he passed the house would go to me. Everyone was in agreement or so we thought. After my Dad passed his wife informed us that she was his wife and she was keeping the house. Is there anything we could do since it was my dads house that him and my mom bought together. Not hers
JA: Since estate law varies from place to place, can you tell me what state this is in?
Customer: California
JA: What documents or supporting evidence do you have?
Customer: I have the papers showing where my Dad and Mom bought this house when she was alive
JA: Anything else you want the lawyer to know before I connect you?
Customer: not that I can think of
Submitted: 1 month ago.
Category: Estate Law
Expert:  Bill Attorney replied 1 month ago.

Dear Customer ,

This is attorney Bill an experienced attorney answering your legal question on probate and estate laws in California today.

Because your Dad passed intestate/ without a will the laws of intestate succession apply.

For these purposes your father's property can be classified into a number of branches; including community property, quasi-community property and separate property.

The house may be one of the three but is likely to be separate property from your above description.

If classified as separate property your father's last wife is entitled to only 1/3 of the house.

If there was a prenuptial or post nuptial agreement then she may be entitled to nothing.

Here is the statute that outlines this position :

"

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.

(Enacted by Stats. 1990, Ch. 79.)

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.

(Amended by Stats. 2014, Ch. 913, Sec. 32. Effective January 1, 2015.)

6402.

Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse, under Section 6401, or the entire intestate estate if there is no surviving spouse, passes as follows:

(a) To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(b) If there is no surviving issue, to the decedent’s parent or parents equally.

(c) If there is no surviving issue or parent, to the issue of the parents or either of them, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(d) If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, to the grandparent or grandparents equally, or to the issue of those grandparents if there is no surviving grandparent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(e) If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, but the decedent is survived by the issue of a predeceased spouse, to that issue, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(f) If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, or issue of a predeceased spouse, but the decedent is survived by next of kin, to the next of kin in equal degree, but where there are two or more collateral kindred in equal degree who claim through different ancestors, those who claim through the nearest ancestor are preferred to those claiming through an ancestor more remote.

(g) If there is no surviving next of kin of the decedent and no surviving issue of a predeceased spouse of the decedent, but the decedent is survived by the parents of a predeceased spouse or the issue of those parents, to the parent or parents equally, or to the issue of those parents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240."

So she may be entitled to 1/3 of the house as you indicated there are two children, you and your brother.

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Attorney Bill