Right of Representation

Dear Len & Rosie,

My aunt just died. She lived alone and never had any children. We found a will in her safe deposit box. The will is dated 1978 and named no executor. My aunt left her estate equally among my father, who is dead, her sister, who is in a nursing home, and her late husband’s children. What happens to my father’s share? Does it automatically go to his heirs?

I have made the funeral arrangements. I have also frozen her credit card accounts and will take care of her house. What do we do next? How can we pay her bills or conduct her business? This is a mess. We can’t afford to pay her expenses out of our pockets. How do we get things paid out of her estate?

Sue

Dear Sue,

Without reading your aunt’s will, we cannot tell you whether or not you and your siblings shall inherit your father’s share. If the gift was made to your father by “right of survivorship”, then it lapsed upon your father’s death and will be divided among your surviving aunt and the step-children.

If you are lucky, the gift was made by “right of representation” or by “per stirpes”. In this case, your father’s share will pass to his issue. You and each of your siblings will get one share, and if you have a deceased sibling, that child’s share will pass to his or her descendants. If your aunt’s will is silent on this issue, your father’s share will likely go to you and your siblings anyway, by operation of California’s “anti-lapse” statute.

It’s too bad that your aunt never updated her estate plan, not only because of your father’s death, but also because her sister is in a nursing home. If your aunt is on Medi-Cal, she will likely lose her Medi-Cal benefits until the inheritance is spent down or sheltered by Medi-Cal planning.

What you need to do next is to go see a trusts and estates lawyer. He or she can review the will and tell you who’s going to wind up with your father’s share. The lawyer can also start the probate. It doesn’t matter that the will does not name an executor. You can be appointed by the court as your aunt’s administrator, even if you will not inherit.

When the probate petition is filed with the court, the court clerk will schedule a hearing before the judge to admit your aunt’s will to probate. This hearing will take place about five or six weeks after the papers are filed, because notice of the petition must be published in a newspaper where your aunt lived for four weeks, and her legal heirs and the persons named in the will are all entitled to 30 days notice. Assuming everything is in order, you will be appointed as the administrator of the estate and you will be givien “Letters of Administration” that will allow you to gain access to your aunt’s accounts.

But that’s only the beginning of probate. You will need to file an inventory and appraisal and probably sell your aunt’s home. After all that, you can submit an accounting to the court and get an order to distribute the estate to your aunt’s heirs. It’s a process that will last at least 9-15 months. Welcome to Probate.

Len & Rosie