Legal Question in Wills and Trusts in California
MY husbands grandfather died awhile back. In his will he stated his daughter could live in the home he left, but upon her death it was to be sold & the profits divided among the other siblings. My father died before his sister, so now the attorneys are telling my mom she only gets 1/3 of the portion willed to our father and 2/3 will go to the rest of us, his children. How can we resolve this? All my brothers and sisters are in agreement that our 2/3 should go to mom. My father had a will, but the law office it was held in burned down several years ago. The attorney maintains this was my fathers seperare property,not community property
1 Answer from Attorneys
An inheritance is separte property unless comingled [mixed up ] with community property funds or assets.
The relatives you list are confusing because you shift some of the relationships. Assuming your father died without a Will, under ca. law as to his private/separate assets, 1/3 goes to his widow and 2/3rds to be equally divided to his children. So what the attorneys told you is correct.
If, however, the children file a disclaimer of interest within the appropriate time, which I think is 6 months after the person's death, then they give up their right to any inheritance from your father and it would be as though no children existed. So all of the separate property would go to your mother. Off hand, I do not think there are any negative tax consequences except that your mother's estate is now larger so if much larger it might be taxable on her death [very doubtful considering the size of the exclusion]. Unless someone has a copy of your father's Will, then it would have to be treated as though he died without a Will
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