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Elderlaw: 12/15/2009

Elder Law Advocates

Dear Len & Rosie,

My motherís second husband died two years ago. Shouldnít all of his assets have been left to my mother? Why is his will still in probate, and why would his will go to probate if she is his surviving spouse? I donít understand why his will is in probate and she is still alive and needs this money to live on.


Dear Jackie,

When a married person dies, there is usually no probate. Most married couples own all of their assets in joint tenancy, or within a revocable trust. Most of the time, everything passes outright to the surviving spouse by right of survivorship, or is at least held within a trust for the benefit of the surviving spouse for his or her lifetime.

However, some couples hold title to their assets separately. If her husbandís will left everything to her, your mother could collect his estate outside of probate with a spousal property order obtained from the court. But in many second marriages, one or both spouses have children or other beneficiaries that they want to protect. If your step-father left everything to your mother, she could make a new will and leave his beneficiaries nothing. Your step-fatherís will may have disinherited your mother, or left his estate in a testamentary trust (a trust created by a will) for her lifetime benefit.

There are other legal issues that may complicate matters. If your step-fatherís will was executed prior to his marriage with your mother, she may be entitled to an intestate share of his estate, either one-third or one-half of the total value of his separate property assets. Unless the terms of the will state that it was made in contemplation of marriage to your mother, the will is effectively revoked with respect to your mother, and she would be entitled to an intestate share of the estate.

If your mother needs money right now for her support, she does not have to wait until the end of probate. During probate, a surviving spouse can apply to the court for a family allowance, to provide her with funds for her support during the probate. The amount of such an allowance is determined by the court and is based in part on your motherís income and expenses. She may wish to file for a family allowance if she has not already done so. The judge can grant your mother a family allowance retroactive to the date of her husbandís death. This may not result in your mother getting as much as she deserves, but itís better than nothing.

If your mother has not already done so, now is a good time for her to sit down with a trusts and estates attorney to review her rights with respect to her husbandís estate.

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.

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