Legal Question in Wills and Trusts in California
My mother-in-law recently died. My father-in-law is 95 yrs. old. My mother-in-law's Will left everything to her son(my father-in-law's stepson). Her Will was notarized and signed by her but not by her spouse. My inlaws live in California, a community property state. Shouldn't my mother-in-law's assets go to her spouse since she passed away first and while they were still married? They shared joint tenancy on their home property. The home was purchased by my father-in-law before they married. They were in the process of divorcing when my mother-in-law died. The divorce was not final. Thank you for your assistance.
3 Answers from Attorneys
The house is not part of your mother-in-law's estate because joint tenancy property passes to the surviving joint tenant as a matter of law. Unless there were other community property assets or assets that were your mother-in-law's separate property, I am not sure what assets there would be to enforce through the Will. You should consult with an attorney so you can go over some of the property issues more specifically to see if you need to Probate the Will.
Assuming the Will was made in California and there were no witnesses who signed, when the notary placed her stamp on the holographic Will [everything in her own handwriting] that should have invalidated the Will since there can be no printing on a holographic Will. There is not need nor reason to have a Will notarized in California; the signature of two witnesses is enough [the notary should have known that]. That minor detail is why you should consult with an attorney in preparing legal documents unless you are sure you know the law because an attorney already told you, little of value is involved, or you do not really care if the document is binding on anyone.
Regardless of whether there was a valid Will, holding property in joint tenancy means upon death it immediately goes to the other joint tenants. The fact that it was his separate property does not matter as when he conveyed an interest in it by making it a joint tenancy it not longer remained as separate property. All community property goes to your grandfather as the still spouse and depending on how many children there was he gets part of her separate property if any existed.
In addition to the responses above, your mother-in-law has the right to gift her half of the community property to whomever she wants. However, the other half of the community property goes to the surviving spouse. The other unknown based on your question is whether there were any orders or agreements in the divorce which dealt with the property. Although the divorce was "not final," there are various stages to a divorce which can happen before it is technically final such as a property agreement. Your father-in-law should consult with a probate attorney.
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