intestate succession and what it means

Dear Len & Rosie,

I have a friend named who is in her 70’s. Her husband passed away three months ago. She and her husband got married recently, but had lived together for 30 years. He owned the house in his name alone. Unfortunately there was no will. She had lived with him in this house since about 1978. He has a daughter from a previous marriage who is trying to take the house. Additionally, she’s been told that since they were married for less than five years she’s not entitled to his Social Security. Is there anything I can do so that she can keep the house? I just can’t believe his daughter is entitled to take something that was never hers.

Debbie

Dear Debbie,

Your friend’s husband died without a will. That means his home and everything else in his estate shall pass by intestate succession - the word “intestate” means “no testament” as in “Last Will & Testament.” Intestate succession is the default estate plan created by the California Legislature. It’s their best guess as to how most people would want their assets distributed when they die. It’s a shame our government declined to disinherit wicked daughters from prior relationships.

In this case, your friend inherits all of the community property, but there probably isn’t any, as her husband was probably already retired when they got married. She will also inherit either one-half of his separate property, if her husband had only the one daughter, or one-third of the separate property if he had more than one child. So at best she’ll own half the home.

The only way your friend would be entitled to more than that is if she could prove that her husband promised to leave her everything, or at least the home, and that there’s a written contract or she acted to her own detriment in reliance of her husband’s promises. Please understand that this is a Hail Mary Pass and isn’t likely to succeed unless she has a lot of evidence in her favor.

Your friend’s husband could have avoided this problem by making a will, and he could have even done it for free by downloading the California Statutory Will form from the State Bar web page at www.calbar.ca.gov.  If he had wanted to protect his daughter too, he could have created a trust that gave his wife the right to live in the home until her death. But it’s too late for that. The best your friend can do now is to make a deal with her husband’s daughter. Maybe she’ll be willing to forgo selling the home now in return for inheriting the entire property upon her step-mother’s death.

As for Social Security, the rule is that you have to be married for one year for a surviving spouse to collect a pension off of the deceased spouse’s earning record.  If your friend’s husband died before their first anniversary, there’s nothing that can be done.

We hate to be the bearers of such bad tidings but we do so in the hope that readers of this column will take note. Getting married or divorced is always a reason to consult with an estate planning attorney to make sure that your affairs are in order. If your friend and her husband had done so, she wouldn’t be in such a trouble today.

Len & Rosie

Why should visit an estate planning attorney, to discuss what you want to do with your property when you die

Dear Len & Rosie,

I am married to my second husband but our home is in my name alone. It was purchased and paid for by my first husband and me. We have a small loan of $5,000 against the property. I would like to leave the house equally to my husband and my two daughters by my first marriage. I need either a will or a living trust, but I want whatever will make it simpler for those I leave behind.

Sara

Dear Sara,

Interestingly enough, if you want your home to be divided equally between your husband and your two daughters, you do not even have to have a will. Because the house was your sole property before you married your second husband, it is your separate property, except for whatever small portion of your community property that has gone into paying off the loan you mentioned. Under California’s intestate succession laws, your husband will inherit one-third of your separate property and your children shall divide the rest, if you die without a will.

But you should have at least a will anyway. Simple wills are very inexpensive. Without a will, you cannot appoint an executor to administer your estate and there could be some conflict in your family about who should get the job. Also, if one of your daughter’s dies before you, her share shall pass to her children, if she has any. If a minor grandchild inherits from you upon your death, the grandchild’s share would be held in a guardianship which would terminate at age 18, when the minor would receive his or her share outright. Most 18-year-olds are not responsible enough to manage that sort of money. An estate plan that creates a trust for the benefit of young beneficiaries is vital. Better yet, create a revocable trust to avoid probate in the courts upon your death.

You may also want to reconsider your intention to give your daughters two-thirds of your home immediately after your death. If they and your husband own your home together, any one of them can sue the others and force a sale of the home in an action for partition. Conceivably, your husband could wind up with some cash in his pocket and no place to live.

An alternative to giving everything away outright is a revocable trust, or a testamentary “house trust” written into your will. A trust can hold your home for the benefit of your husband for the rest of his life. After your husband dies, the trust can then give everything to your two daughters. This way, your children will ultimately get all of your property, instead of just two-thirds, and your husband will be assured of a place to live out his days.

You should visit an estate planning attorney, to discuss what you want to do with your property when you die. Even when people have simple desires such as your own, complications that they are unaware of can ruin their plans. An attorney can let you know of the things that can go wrong and help you create an estate plan which will do what you want.

Len & Rosie