Legal Question in Wills and Trusts in California

Wills can be changed up to the date of death and only can dispose of assets that the person legally owns right at the time of death. If your father legally changed his Will, then the new one is what would be used to determine who gets what. But he can not give away what he does not own. The house was owned as his separate property but it is possible for part or all of it to become community property.

You need to speak politely to his widow and find out if there is a new Will and what the status of the house and other assets are. You then need to present the facts to an attorney to see if you have any legal rights to any of the assets. You should also read some books on probate, such as from Nolo Press which you can find at the library, to learn in general what the law is and what information you need to obtain. No attorney can give you good answers without your being able to provide the facts to them.

I think Mr. Shers misread your question. I read your question as there is only one will, and you want to know what effect his subsequent marriage had on that will.

She would be what is called a pretermitted heir. California's probate statutes protect a surviving spouse from being unintentionally omitted from the deceased spouse's will. Probate Code sections 6560 and 6561 provide that if a person marries after making a will and the spouse survives the maker of thw ill, but the spouse is not provided for in the will, the surviving spouse may take, in addition to hher share of the community and quasi-community property, her instestate share of teh estate. The surviving spouse's intestate share may not exceed one half the value of the separate property in the estate.

The surviving spouse does not receive her intestate share if any of the following are established: 1) the maker of the will's (testator) failure to provide for his wife was intentional and that apepars from the will; 2) the testator provided for his surviving spouse by transfer outside the will, and the intention that the transfer be in lieu of the will is shown by statements of the testator or other evidence; OR 3) the surviving spouse made a valid agreement waiving the right to share in the testator's estate. (This would be found in a prenuptial or postnuptial agreement.

I agree with Mr. Roach that Mr. Shers is off base. I also agree with Mr. Roach on the law, but I don't think it applies to your situation. You say that your father made his new wife "beneficiary" of his house and his IRA. That is more than just getting married some time after making a will, and what happens if you fail to make a new will at that point. To answer your question with certainty, we would need to know exactly what your father did to make his new wife the "beneficiary." Beneficiary in the legal world is a very specific term, and unless the house was put in a trust it would not be proper to use it to decribe how someone gives an interest in a house. Did he add her to title by executing a deed? If so, as "husband and wife"? "Joint tenants?" The manner in which title was held, and/or how he made her what you call a "beneficiary" is crucial to determining her rights and yours. If he put her on title to the house in some manner before he died, that superseds the will. As Mr. Shers did correctly state, nothing can pass to you by the will if it does not belong to his estate after he dies. If he made her and himself joint tenants, she became full owner of the house upon his death, and therefore it was never part of his estate. The same thing is true of the IRA. If he designated her as his successor upon death on the account documents, it became hers when he died and it never became part of his estate to be distributed according to the will. To get a fully reliable answer to your question, however, you will have to provide details on exactly what he did before he died, vis a vis making her a "beneficiary."