Legal Question in Wills and Trusts in California

You need to see an attorney to discuss whether a probate is necessary and distribution requirements if the assets are separate property and not community.

I would contact the banks and the institution where the IRA is located. There is no state law governing this, and different institutions can require different things. In addition, many institutions have their own brief forms that must be filled out.

While this can sometimes be handled without an attorney, do not hesitate to contact one who has experience handling probate matters for assistance.

I am sorry for your loss. If the total in these accounts is less than $150,000, and your wife I am sorry for your loss. If the total in these accounts is less than $150,000, and your wife has been deceased for at least 40 days, you may be able to use an Affidavit/Declaration of Small Estate along with a certified copy of the death certificate to obtain these account funds.

There are two issues that will need to be address however. First, as Ms. Rouse advises you, how you proceed also depends on whether the funds were community property or separate property and whether there are other beneficiaries involved. You should discuss this thoroughly with a Probate attorney as soon as possible. Second you will need to be careful with the IRA, because assuming that it is a traditional IRA, there will be taxes due if you take distribution outright. You may want to roll that IRA into your own IRA or similar retirement account to avoid unnecessary taxes. That is something to discuss with your financial advisor.

If your wife�s accounts/IRA are valued at greater than $150,000, you will need to Probate the assets anyway. If community property, you may be able to file a Spousal Petition rather than a regular Petition for Probate or Administration depending on the facts in your situation.

Please feel free to contact me directly at [email protected] if you have any additional questions.