Probate

Dear Len & Rosie,

My father passed away without a will. He had been married to his second wife for almost seven years. The house they lived in together belonged to his second wife long before they married, but my father had a retirement account and some other small assets. What happens to his assets now? Does everything go to his wife or are his three adult children entitled to anything? His wife has always been very nice, but this is an awkward subject and none of his children want to cause a problem.

Wendy

Dear Wendy,

Because your father had no will, his probate estate will pass by intestate succession, the law that says who gets what when someone dies without a will. Any community property your father owned will pass to his wife. If, however, he was already retired when he married her, there shouldn't be any separate property, as community property consists of assets your father acquired during the marriage as the result of his labor.

If your father had only one child, his wife and child would divide his separate property equally between them. But since your father had three children, his wife inherits one-third of the separate property and you and your siblings will divide the remaining two-thirds of the separate property among them.

This only applies to your father's probate estate, which more or less consists only of assets titled solely in your father's name. Anything your father held in joint tenancy with others will pass to the surviving joint tenants. Any accounts with pay-on-death beneficiaries, such as your father's retirement accounts and his life insurance, if he had any, will avoid probate if your father named beneficiaries.

If your father did not add his wife on to his retirement accounts and life insurance policies before his death, it is more than likely that you and your two siblings will get this money. You will also get any money held in joint tenancy with you, as well as your intestate share of any accounts that were titled solely in your father's name.

The sticking point may be your father's personal possessions, because they have no title. It wouldn't be very nice of you to show up in a truck and take your step-mother's bed away from her, even if you want it to stay in the family. What you should do is to talk to her about those items of your father's that you would like to keep for yourself, and try to work it out. Just remember that she was married to your father and has her own personal interest in many items of sentimental value.

As a rule of thumb, anyone entering into a second marriage should update his or her estate plan, or create one if they don't have one already, if only to avoid potential problems such as squabling over personal possessions. If there is a conflict between you and your step-mother, it's probably your father's fault.

Len & Rosie