Legal Question in Wills and Trusts in California

Who Defines Legal Heirs?

The estate of my deceased stepmother has been in probate since June 15. My stepmother died on March 19, 2004. My father died two years earlier on December 8, 2001. Neither of them left a will.

A Public Administrator and a Probate Referee have been assigned by the Calaveras County (California) Superior Court to administer the assets of the estate which, before outstanding liabilities, creditors, etc., is approximately $250,000. A Judicial Council of California Form DE-121, ''Notice of Petition to Administer Estate,'' has been issued. This includes the estimated value, $180,000, of the house in which they both lived.

My stepmother has three surviving siblings who, according to the Public Administrator's determination, are to be recipients in the eventual distribution of the assets.

My question, and one for which I have no answer is, are my two sisters and I entitled as heirs to any distribution of these, at least our father's, assets even though our father died two years earlier? Our names were included on the DE-121 but that was before a search revealed my stepmother's three siblings living in Wisconsin. We are his children from his first marriage.

Thank you if you can answer my question.


Asked on 8/19/04, 7:35 pm

2 Answers from Attorneys
Ken Koenen Koenen & Tokunaga, P.C.

Re: Who Defines Legal Heirs?

Statute defines the legal heirs. If your father and your step-mother held their property in joint tenancy or community property, it all went to her upon your father's death. Now, everything goes to her children, and it would seem that you will be left out.

Read more
Answered on 8/19/04, 7:50 pm
Chris Johnson Christopher B. Johnson, Attorney at Law

Re: Who Defines Legal Heirs?

You may be entitled to half of the real estate. Under Probate Code section 6402.5(a), if the decedent had a predeceased spouse who died within 15 years of the decedent's death and dies without spouse or issue surviving, real property attributable to the predeceased spouse is distributed to the heirs of the predeceased spouse. The same rule applies to personal property (that has a written record of title) when the predeceased spouse died within a 5-year period of the decedent's death.

Read more
Answered on 8/19/04, 8:39 pm


Related Questions & Answers

More Probate, Trusts, Wills & Estates questions and answers in California