Dear Len & Rosie,
My father recently passed away without a will. As far as I understand, my mother and he never finalized their divorce because the settlement agreement had not been filed, even though they filed for divorce in 1989.
My father’s wishes were that my mother would receive half of the home and my brother, sister and I were to share the remaining half interest. My mother has now retained a probate attorney and we are not sure what her intentions are.
In addition, my paternal grandmother willed some property to us three children and my mother is now trying to claim that property even though my grandmother specifically stated in her will that my mother was to be excluded and if she contested the will, she was to receive $1. Do you recommend that I retain my own probate attorney?
There are two separate cases here: Your father’s estate and your grandmother’s estate. With respect to your father, you have problems. If the divorce had been finalized then your mother would have been automatically disinherited from your father’s will, if he had one, and would not inherit any portion of the estate by intestate succession, if he had no will.
But since your parents were not divorced upon your father’s death, your mother is still the surviving spouse. The fact that they have been separated for two decades doesn’t change this. She gets to inherit whatever your father left her in his will. If he died intestate (without a will), your mother shall inherit all of your father’s community property and one-third of his separate property, because he was survived by more than one child.
As for your grandmother’s estate, your rights depend on the exact terms of your grandmother’s will, which we have not had the opportunity to review. If your grandmother left everything to your father, and then died before him, there’s a good chance that all or a portion of your grandmother’s estate shall pass into your father’s estate to be distributed to your mother in addition to your father’s children. But if your grandmother’s will left you something specifically, rather than you inheriting through your father, your father’s death and your mother’s claims should not affect your own inheritance.
You should probably sit down with a trusts and estates attorney and review both the estates of both your father and grandmother because the particular facts in your situation are important and will affect your rights. But you should know that it’s your father’s own fault that his wife may inherit so much. His wishes won’t count unless they were incorporated into an estate plan that he didn’t get around to creating while he had twenty years to complete. Don’t blame your mother for your father’s inaction.
Len & Rosie
Dear Len & Rosie,