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Elderlaw: 12/01/2014

Elderlaw Advocates

Dear Len & Rosie,

My grandmother died almost a year ago and willed each of her grandchildren and great grandchildren $500. My aunt and uncle were on the title of the house along with my grandmother. They were also named executors of the estate. All the grandkids are wanting their inheritance and are being told that there is no money. The house was just rented this month and will be bringing in monthly income.


Dear Darla,

Whether or not youíre ever going to see your modest inheritance depends not only on the terms of your grandmotherís will, but also whether or not she actually owned anything subject to probate. Your grandmother created an estate plan, but thereís a good chance she didnít really understand how it worked.

Your grandmotherís home, held in joint tenancy with her children, was not subject to probate, and was not subject to the terms of her will. When a joint tenant dies, the surviving joint tenants own the property automatically. All your aunt and uncle had to do to clear title was to submit your grandmotherís death certificate with an affidavit of death of joint tenant to the county recorder, together with the property tax paperwork needed to avoid a reassessment under Propositions 13 and 58.

What your grandmother did by adding your aunt and uncle to her deed was to save thousands of dollars in probate attorney fees, as well as the delays of probate. But she did this at the cost of removing her home from her estate plan. The only assets that can be used to fulfill the $500 gifts your grandmother wanted to make are assets that were titled solely in her name upon her death. Assets in a trust, joint tenancy assets, and assets with pay-on-death beneficiaries are not disposed of by your grandmotherís will.

Chances are, she didnít have all that much besides her home. If she had more than $150,000 in her name alone, then her will would have to be probated, and you would have received a notice of the petition to admit the will to probate. If she had less than $150,000 in accounts solely in her name, then these accounts could have been collected using small estate declarations under Probate Code section 13101, but these declarations should have been signed by all of the recipients of your grandmotherís will, yourself included.

If there is money out there, you could sue your aunt and uncle if you can prove that they took the estateís money for themselves and didnít use it all to pay off your grandmotherís debts. But itís only $500, and if her bank accounts were also in joint tenancy thereís nothing to fight over except for the furniture. Consider this as a lesson.

Len & 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 fatherís 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?


Dear Janene,

There are two separate cases here: Your fatherís estate and your grandmotherís estate. With respect to your father, you have problems. If the divorce had been finalized then your mother would have been automatically disinherited from your fatherís will, if he had one, and would not inherit any portion of the estate by intestate succession, if he had no will.

But since your parents were not divorced upon your fatherís death, your mother is still the surviving spouse. The fact that they have been separated for two decades doesnít change this. She gets to inherit whatever your father left her in his will. If he died intestate (without a will), your mother shall inherit all of your fatherís community property and one-third of his separate property, because he was survived by more than one child.

As for your grandmotherís estate, your rights depend on the exact terms of your grandmotherís will, which we have not had the opportunity to review. If your grandmother left everything to your father, and then died before him, thereís a good chance that all or a portion of your grandmotherís estate shall pass into your fatherís estate to be distributed to your mother in addition to your fatherís children. But if your grandmotherís will left you something specifically, rather than you inheriting through your father, your fatherís death and your motherís claims should not affect your own inheritance.

You should probably sit down with a trusts and estates attorney and review the estates of both your father and grandmother because the particular facts in your situation are important and will affect your rights. But you should know that itís your fatherís own fault that his wife may inherit so much. His wishes wonít count unless they were incorporated into an estate plan that he didnít get around to creating while he had 20 years to complete it. Donít blame your mother for your fatherís inaction.

Len & Rosie

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