Legal Question in Wills and Trusts in California

Re: who is entitled to the assets

This reply is based on Illinois law, although I suspect California is very similar. Your friend should contact the lawyer who handled the estate, to clear things off.

1. There might be a question of delay on his part, but he may claim lack of notice.

2. An illegitimate child must prove descent from a male parent by clear and convincing evidence. It sounds like that is not disputed.

3. As a child, he would inherit a share in the absence of a will. This is totally based on relationship and has nothing to do with who is closer, etc.

4. A person who would inherit without a will is referred to as an heir (I know it sometimes gets used generally for beneficiaries, but the correct legal term refers to a person who receives without a will).

5. Such a person has standing -- a right to challenge the will that's depriving him of his rights. He is therefore entitled to notice that his rights are in danger.

6. But that doesn't mean he can win. It just gives him a right to go to court.

7. With a broad generalization, a person has an absolute right to leave his property to whomever he wishes, by a valid will (properly signed, witnessed, of sound mind & memory, not under duress, etc.)

8. In Illinois, there's no requirement to show you were thinking of the person cut out, except with regard to children born after the will.

9. All of which is a long way of saying that unless California is very different from Illinois, he won't get anywhere.

BUT not only may there be a difference, this can be a nuisance unless stopped early. I suggest she have an attorney respond to the claim.

Re: who is entitled to the assets

Answer based on California Law. I am assuming the daughter or the probate is/was in California.

The long lost son (LLS) would be entitled to a share of the estate, only if there was not will. If there was a will, and the LLS was not named, he would have to show one of three things:

1. That the will was written before he was born, thus making him a "pretermitted child"; or

2. That the decedent did not know he had the child (which is not likely, because of child support payments); or

3. That he mistakenly thought the LLS was dead, and for that reason omitted him from the will.

Simply "forgetting" that he had a son would not take him very far.

He could cause a hearing, but the burden of proof would be on him, and I doubt he would get very far.

Tell the daughter, good luck.

Re: who is entitled to the assets

He would not be entitled to anything, but he should have received notice of the hearing. The best thing would be for him to see an attorney, who would tell him the same thing.

Re: who is entitled to the assets

Based on the information provided, the father left a will, named his daughter as beneficiary, did not unintentionally omit the son, and therefore the son who is not a minor has no legal basis for contesting the will or the gift.

Re: who is entitled to the assets

The normal rule is that a child is written into the Will for some small sum to show that the parent had not forgotten the child. If the parent is presumed to have forgotten the child, that child is then entitled to a full share. However, in every instance the child not in the Will will have to challenge the probate proceedings while it is going on. And not show up later, and announce his/her oppositin to the distribution. So the issue then becomes when did the child learn of the death of a parent.