Legal Question in Wills and Trusts in California

Re: Father Died Don't trust Stepmother to Follow through with Trust

A determination of the nature of the estate is definitely necessary. Also, you should find out whether the estate has gone through probate or if a spousal property petition has been filed. If so, you should have received notice of the proceedings. Lack of notice can allow you to file a motion to set aside the judgement. If the estate has not been dealt with through the court, you can file the petition yourself. You may have a valid claim on about 1/4 to 1/2 of the estate if he died intestate. Contact an attorney in your area or you can call my office at 916-446-1516 to discuss further.

Re: Father Died Don't trust Stepmother to Follow through with Trust

No will and no trust is the problem. How to enforce her promise to cut you in is the delicate issue. You are on the right track with having her establish an irrevocable trust for your protection. You may want the entire matter reviewed. Call me directly at (619) 222-3504.

Re: Father Died Don't trust Stepmother to Follow through with Trust

Sorry to hear of your father's untimely passing.

Let's start with separate property issues:

(1) Did your father own property, real or personal, prior to this marriage?

(2) can you discern this property from after marriage acquired property?

Life insurance:

(1) do you have a copy of the policy? Can you get one?

(2) same is true of 401K

If necessary, you can start a Probate and demand acounting from her. If there was separate property owned prior to the marriage, then this will be subject to Probate.

Perhaps the best first step is to request the irrevocable trust. A letter to her may also be helpful.

Please feel free to contact me at my office (626-578-0708) or through my web site (www.No-Probate.com) to discuss further options.

Scott

Re: Father Died Don't trust Stepmother to Follow through with Trust

If your father had no will and all of his assets were was held as joint tenancy or community property with your stepmother, then she was entitled to all of his estate.

SEE http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=05001-06000&file=5201-5205

SEE http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=06001-07000&file=6400-6414

SEE http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=00001-01000&file=100-105

If there was a trust holding their assets, it depends upon the provisions of the trust.

As you can see, a married individual in California who wishes to pass some or all of his or her estate which is community property to children or others (rather than his or her spouse) must do this by will (or using a trust).

If your father died without a will and he had separate property you were entitled to a share of his estate. If a probate was not opened, you can open a probate of his estate as a potential heir.

If your stepmother legally received all of your father's estate at his death, she will be able to use it as she chooses and make provision as she chooses at her death. An irrevocable trust is a possibility, but you would need to obtain her agreement.

A starting point with your stepmother is to ask her for an accounting of your father's estate. It is also possible to obtain information regarding real property which they held (and which she may now hold), but this requires their names at a minimum and preferably property addresses as well.