Legal Question in Wills and Trusts in California

Re: Mom passed and we're told step-father had durable power

Check with a local probate lawyer. There are many possibilities here. When a married person dies in California, the surviving spouse is entitled to one-half the community property and his own separate property. The rest goes to the decedent's estate. If there is no will, the children would take the rest. But, things can effect that. For example, if property was held in joint name, it automatically passes to the surviving joint tenant and never becomes part of the estate. So, if your mom had everything in joint accounts and joint title with him, it could have automatically all become his. If nobody ever files a probate petition, it could mean it was all joint held property and there is nothing to probate, or it could mean there is a will that gives it all to him and he is just trying to avoid probate formality, or it could mean somebody is helping themselves to something and doesn't want the court involved. It is just impossible to say with this much information. He might be nothing nothing illegal, but simply found out he is entitled to a lot more than he thought and doesn't know how to tell you.

I doubt the life insurance is a problem. If you are the named beneficiary, the insurance company wouldn't pay him, so he couldn't really steal it. But, since its not his, maybe he just feels no incentive to spend effort to help you. But I have seen instances where the spouse of a deceased person took loans against the policy of a decedent by falsely signing the decedents name to the loan application. This can have the effect of wiping out the policy reserve and, hence, the death benefit in certain types of insurance policies.

About the only thing I can think of that you might be able to do here is file a probate petition yourself if you have not received any court papers yet from anybody. If you don't think she had a will, you could claim she died intestate and ask to be named admininstrator of the estate. Of course, the husband could counter by producing a will, or saying he should be appointed administrator. But, if you are appointed, you can force him to disclose information about her finances, and if he is named administrator, you would have a right to demand it of him or have the court force him to turn things over.

I would say you need to contact a good local probate lawyer and see whether you can take some action here to force him to be more up front. I don't think the possible existence of a durable power of attorney would itself amount to a substitute for a will or give him the right to take the entire estate for himself.

Re: Mom passed and we're told step-father had durable power

And do with this problem numerous when there is a second marriage involved in children from the first marriage. Many times, the parents don't understand the law and do not do anything which would properly allow them to make sure that their children are taking care of as well as the new spouse. I won't go into details but my immediate reaction is for you to get a probate council and get him/her the answers to numerous questions applicable to the estate. As to the insurance has a different question. It is very possible your stepfather does no one talked to because of the insurance. Do you remember what you signed, do you remember the insurance company. More importantly, the probate attorney could write your stepfather a letter and explained him the details of the estate when necessary including the insurance company, the policy and its value as well as being named beneficiaries. In this year each person has $1 million exempt. In all probability the taxes have nothing to do with this and that is a mere excuse. If you wish to consult with me I would be more than happy to speak with you and give you a list of questions which should be answered. If you can then your stepfather should be able to. At worst to protect yours in your brother's interest litigation would have to be started. 925-945-6000

Re: Mom passed and we're told step-father had durable power

from the facts given, you should retain legal counsel as swiftly as possible. from the facts given, it definitely appears your stepfather is up to something "fishy" to say the least by his avoidance conduct. the sooner you retain counsel in this matter, the sooner you can preserve what you are entitled to. feel free to email my office directly for a free evaluation/consultation of your rights. we will do our best to help you get justice in this matter.