My father recently passed away. He was married to my stepmother for 33 years. Prior to his death, he wanted to buy me a manufactured home, and told me to look for a home costing up to $200,000. I couldn’t find one in an area that suited me before he passed.
Unfortunately, he did not leave a will. My stepmother is crying poor, and selling everything of value. She has cut off all communication from me and I found out that she was able to get over $70,000 that he had in a savings account. Shouldn’t that be part of probate?
Also, I found out that when my father bought his house he and my stepmother were only “tenants in common” and she only had a 13% interest in the house. I am my father’s only child. What happens with his estate? How are his assets supposed to be divided?
We live in California.
Given that your father died without a will, his estate should go through probate and the court would provide an administrator to take an accounting of his assets, and distribute them among his legal beneficiaries, per the intestacy law in California.
As for that $70,000: If the account in question was a joint savings account with the right of survivorship or a payable-upon-death account, your stepmother would inherit that account, and it would not go need to go through probate.
That said, she should not sell any property that could or should go through probate, but unfortunately a “land grab” is not — alas — an unusual response, especially if there is a partner or child remaining in the family home.
Your father’s share in their home is part of his estate, and subject to probate. The value of the home is considered on a “step-up in basis,” meaning that it’s valued at the current market price rather than the price he purchased the home.
“Tenants in common” — where each party owns a specific share and does not automatically inherit their spouse’s share — is an unusual way for a married couple to own a property in California, but it is as an option.
“‘Tenants in common creates a problem for the remaining spouse when there is a second heir, and no will.’”
It also creates a problem for the remaining spouse when there is a second heir and no will. Under California intestacy law, your stepmother would inherit all community property, and 50% of his separate property, with the rest going to you.
Other considerations: California is a community-property, rather than an equitable-distribution, state. Under those rules, significant assets acquired during the marriage are viewed as marital or community — rather than separate — property.
“Simply because two people are married does not necessarily mean that they own property as community property,” according to Schorr Law. “Generally speaking, if property is acquired during the marriage, it is presumed to be community property.”
“However, there are exceptions. For example, if the deed or another agreement specifies otherwise. To the extent real property is held as basic community property, there is no automatic right of survivorship,” it adds.
If they had purchased the property as “joint tenants with rights of survivorship,” the most common ownership agreement among married couples in California, they would each own 50% and would inherit the property upon the other’s death.
It’s surprising that your father would take such care over the deed of his home, yet not leave a will, and it’s equally unfortunate that he would offer you a $200,000 home but not make provisions for that before he died.
It’s a missed opportunity, and a hard lesson to learn.
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