Legal Question in Real Estate Law in California

Re: Sole Heir?

If your father has no will and no beneficiary designations, the simple answer is that the property will pass to you. The problem is, it's not always that easy. For example, your question doesn't say whether he holds title to any real property. If he holds real property and shares title with anyone (for example, if the title on the real property still reads "Dad and Mom as Joint Tenants" then your mother would hold 100% of the property after his death, because joint tenancy comes with "right of survivorship". Likewise, if he had a life insurance policy or a pension and designated someone other than you as the beneficiary, then the other person would inherit those proceeds on his death. (Your mom may even be the person to receive some or all of those proceeds under the terms of the divorce agreement.)

The best thing to do is to (a) make a list of assets, and think about how title is held and who is named as a beneficiary on each, and (b) consult an Estate Planning attorney, who can advise your dad whether a trust is necessary and help your dad draft a will and trust. This is not my primary area of practice, but I would be happy to recommend you to one of my colleagues in your geographic area if you contact me. You should also talk around to your friends and get a personal recommendation.

Re: Sole Heir?

Unfortunately, the answer is a big IT DEPENDS.

Does your father have a will? Does he own a home? Does he have a trust?

Generally, if a person passes away owning over $100,000 in assets (amounts still owed are NOT considered as a deduction of value) then a Probate MUST be used to transfer the assets.

If your father prepares nothing then the Probate Code (yes, it will require Probate) will dictate to whom his assets are bequethed. As sole issue, yes, they will come to you. But the other issue remains; is your mother listed as beneficiary on any of your father's insurance policies? These would still go to her under Federal Law. Did their divorce make a final decree regarding property and assets obtained during the marriage? This will also be important to look at.

The most used and highly valued means around Probate is with the use of a family trust, as you have found. Our office specializes in these.

Perhaps an initial free consultation would be your best option. I can be reached at the number provided by LawGuru or through our firm's website at www.No-Probate.com.

Regards,

Scott Linden

Re: Sole Heir?

Living people do not have heirs, so at this time your father does not have any heirs, because he is not dead. The reason that this is true, is because in law, heirs are determined at the date of death.

In the event that you die before your father, you would not be your father's heir, unless you had children who stepped into your shoes. In California, we call this per stirpes representation.

Your father could remarry prior to his death, and then his new wife would also be an heir. This is so speculative at this time, and that is why the previous two attorneys answered to the effect that "IT DEPENDS."

Regarding his ex-wife, ex-wives do not have the privilege to inherit from their ex-husbands unless the ex-husband has provided for her by way of will of trust.

Her children that are not of his body, or that were not adopted by him cannot inherit.

So at this time, if your father died today, you would be the sole heir. But this can change.

To plan where property goes after death, people utilize two instruments, wills and trusts. A will conveys property after death through a procedure known as probate. Many people do not like this procedure, and they set up trusts, which convey property to a trustee, who holds the property for beneficiaries and exercises powers and duties in accordance with a trust instrument.

If your father has specific dispositions of his property that he would like to make, he should seek an estate planning attorney.

Very truly yours,