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

Wife "severed" Joint Tenancy

Dear Len & Rosie,

My wife and I owned our home, a condominium, as joint tenants. When she learned she had terminal cancer she recorded a deed for her half of the property, giving it to herself. She also made a will leaving her estate to her two children and our son. My wife died three years ago, but nobody has filed for probate. Can I make a deal with my son and step-children without going through probate?

Jon

Dear Jon,

When multiple owners hold property together in joint tenancy and one of them dies, the surviving joint tenant or joint tenants owns the property automatically, outside of probate. All there is to do is to record the deceased owner’s certificate of death, attached to an affidavit of death of joint tenant.

Your wife threw that plan out of the window by “severing” the joint tenancy. This is perfectly legal as long as the deed was recorded prior to your wife’s death. If she signed the deed within three days of her death, it could also be recorded within seven days after her death.

Assuming she did it right, your wife’s half of the property now belongs to her probate estate and passes under the terms of her will. Again, this is perfectly legal. Your wife had the right to dispose of her assets, even her half of the community property, in any manner she chose.

Normally, your wife’s estate is subject to probate. However, if the gross value of your wife’s share of the property is worth less than $150,000, then her heirs can petition the court under Probate Code section 13150 for an order transferring the home. It’s much easier, cheaper, and faster to do than a full probate. You will still have to get your wife’s interest in the home appraised by a California Probate Referee, but you won’t need to give notice to creditors or prepare an accounting. The whole process shouldn’t take more than a couple of months, and most of that time will be waiting for the Probate Referee to finish his or her appraisal of the property.

Either way, it’s not very good news for you. She left her half of the property to her children, not you. The only real claim you would have against her half of the property would be for the mortgage payments you’ve been making after your wife’s death.

But there is good news. It’s been three years and the children haven’t been clamoring to probate the estate, force a sale of the property, and kick you out to the curb. You ought to be able to make a deal with them. They may even disagree with what their mother did and transfer to you their interests in the home. Let them know that you’ll remember their generosity when you make your own will or trust.

Len & Rosie