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Elderlaw Advocates

Elderlaw Advocates


Len Tillem & Rosie McNichol

Dear Len & Rosie, My mother’s second husband died two years ago. Shouldn’t 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 don’t understand why his will is in probate when 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.

Some couples hold title to their assets separately. If her husband’s 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 stepfather left everything to your mother, she could make a new will and leave his children nothing. Your stepfather’s will may have left all or part of his estate to his children, or he could have created a testamentary trust (a trust created by a will) for your mother’s lifetime benefit.

There are other legal issues that may complicate matters. If your stepfather’s 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.

Another complication is that if your mother and stepfather married before his retirement, then part of his estate is community property half owned by your mother, and part of it is separate property owned solely by him. It can become very complicated trying to figure out what exactly consists of your mother’s interest in her husband’s estate.

If your mother needs money right now, she does not necessarily have to wait until the end of probate. She can ask the executor to provide her with a monthly family allowance for her support. If the executor is not willing to do this, then she has the right to petition the court for support from the estate.

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 husband’s estate. Len and Rosie 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? Janene