Divorce, Probate and Community Property

Dear Len & Rosie,

My husband died two months before our divorce was completed. Before his death, he wrote a will naming his divorce lawyer as his executor and his children as the beneficiaries. I fear this lawyer is biased and will not execute the will in a fair manner. I appeared in court and the judge told me to file a written objection.

I am concerned about my children's rights because the will leaves everything to his children, and nothing to mine. There is also an insurance policy that name me and both of our children as beneficiaries, but the will leaves this policy to his children.

Medha

Dear Medha,

It's unfortunate for you that your husband had the benefit of a good divorce attorney. While it's to your disadvantage that your husband created a new will, it's was good legal advice for his attorney to have advised him to do so.

You will probably lose in your effort to have someone else named as the executor of your husband's estate. Unless your husband's will was not properly signed and witnessed, it's a valid will, and the court will appoint the lawyer as executor. The only way to successfully fight this is to show that the lawyer cannot be trusted to impartially represent the estate.

The fact that he represented your husband against you in the divorce is actually to the lawyer's benefit. His job as executor is to represent the interests of the beneficiaries of your husband's will, not you. Your children from your previous marriage have nothing to do with it, because they are not your husband's heirs.

But there is good news. If you and your husband did not enter into a marital property agreement dividing up the marital property before his death, you may have a claim against a portion of your husband's estate, regardless of what his will says. You are entitled to your half of the community property, even if it was solely in your husband's possession when he died. On the other hand, his estate may have a claim against you, if you were holding community property in your name alone. You should review the case with your family law lawyer before you consider filing a claim against your husband's probate estate.

The other silver lining in your cloud is that your husband did not change the beneficiaries of his life insurance policy. Doing so probably would have been a violation of the Automatic Temporary Restraining Orders that are issued when either spouse files for divorce. Lucky for you, insurance policies that have named beneficiaries pass outside of probate. The beneficiary form he signed leaving the policy to you and all of the children trumps his will. You should be able to collect the portion of your husband's insurance policy for which he named you the beneficiary.

Len & Rosie