Estate issue

[Number Six]

I have a friend who's father died a few weeks ago, the man was a long time CIA worker in Asia, among other things. Peter's mother also passed away a couple of years ago, and his sister got everything, likely into the six figures. The father had remarried the lady he left behind and she has not contacted Peter regarding any memorial service (which the father did not require) nor an estate which under California law I would think she is required to do so. I suggested that Peter join this site and ask questions about what he could or should do, and will continue to urge him to do so. What sort of rights does Peter as the only surviving son (he has a sister and step-sister) have? Thanks.

[wserra]

No will? It depends on CA intestacy law. In NY, surviving spouse gets first $50K, then the rest is divided 50% to surviving spouse, 50% to child.

[JamesVincent]

In MD if I remember correctly when a friend of mine went through this it went to a surviving spouse and then to children. I dont believe there was a dollar amount attached. He could get on here but he really needs an attorney who practices in CA or a way to look up what the law is so he can file against the estate if he needs to. And if theres issues between the siblings and the spouse then he's going to want an attorney anyway. When my ex'es uncle died of brain cancer his sister, who was named executor, got her attorney to throw out the will saying he was not of sound mind and body when he wrote it while dying of brain cancer. As she was named executor and sole surviving sibling and there was no spouse she ended up with everything.

[LaVidaRoja]

IIRC (it's been awhile since I dealt with CA inheritance/estate law), the threshold for an estate to go into probate is not terribly high. Less than $50K. Probate fees in CA are HIGH, therefore most people have trusts. The beneficiaries of a CA trust MUST be notified that they are beneficiaries, and upon request, must be provided with a copy of the trust instrument.
However, If the decedent held everything in "pay on death" accounts or in joint tenancy with right of survivorship, everything could pass by operation of law, without the need for a trust or for a probate proceeding. IRS accounts could/would pass to a named beneficiary upon presentation of the death certificate and positive ID by the beneficiary. If he suspects that there was/is an estate (that everything was not in joint tenancy) he needs to consult with and likely hire an attorney to file a claim against the estate. That should force the widow to disgorge anything she should not be keeping. Such litigation frequently ends up with the attorneys for the parties becoming the main beneficiaries of the estate.

[Number Six]

I told Peter he needs to do the research and ask the questions. Hopefully he will read this feedback and do what he needs to do. There is probably a will, but the old man did not have lots of assets. Peter has yet to be contacted on any estate related issue by the surviving spouse.

[Kestrel]

However, If the decedent held everything in "pay on death" accounts or in joint tenancy with right of survivorship, everything could pass by operation of law, without the need for a trust or for a probate proceeding. IRS accounts could/would pass to a named beneficiary upon presentation of the death certificate and positive ID by the beneficiary.

IRS accounts? I hope you mean IRA accounts.

Speaking of the IRS, however, and other creditors... who gets priority when the estate is distributed - the joint tenant/survivor or the creditors? It seems kind of, well, wrong that a decedent who had run up lots of debts could "stiff" his creditors by dying, while leaving valuable property to a joint tenant/survivor.

[LaVidaRoja]

You're right. IRA accounts. IIRC, Special Procedures Function has (or had) specialists who dealt with income, TFRP, employment, etc taxes of decedents. The 906 (before the mess that occured in 2011) had a schedule for debts of the decedent. Those were deducted before getting to the amount of the estate available for distribution.

[Cathulhu]

IRS definitely gets first debts. If the executor doesn't clean it up, anything that executor got from the estate can be taken, as I recall it.

[Arthur Rubin]

Intestate estates in California are divided: Community property goes to the spouse; separate property goes half to the spouse, and half to the children (or perhaps 2/3 to the children if there's more than one child); I've had occasion to look into this, recently. And the part that goes to the spouse by action of law or the will does not go through probate.

And probate fees can be waived if the will so states and the executor agrees.

[fortinbras]

For a start, suggest that your friend make the first move and contact the grieving widow even though she hasn't contacted him. Believe it or not, when someone dies the decedent's mailing/phone lists are not always at the top of the pile. It may be that she cannot find your friend's current phone & address (or that she misplaced it while having to do a great deal to arrange a funeral, prepare the house for a wake/shiva, give the deceased's clothes to the Salvation Army, etc.).

Assuming that the problem is not merely that the widow had trouble contacting your friend, I suggest he get a good wills & estates lawyer in Calif., or wherever his dad was living when he died, just to make sure that he gets his fair share. It is possible that dad didn't leave a will, at least not where it could be found, which is one reason the widow has been quiet. {In law school, I was taught Wills & Estates by the famous Janet Spragens, who told the class - she was fairly young at the time and so was I - that she and her husband had deliberately decided not to write wills because they were both content with the mathematical distribution scheme of the intestacy laws. I, personally, thought this was a lousy idea because someone would eventually be spinning his wheels looking for a will that didn't exist, which is going to mean a long and frustrating delay.}

[Number Six]

The "grieving" wife is not speaking. Peter spoke very regularly to his father in LA. He has a low wage job so cannot afford a lawyer. Last time around, when his mother died, his sister in Canada grabbed all the loot, valuable art and possessions and he did not exert his legal rights; he is not on speaking terms with her and has considered letting the Canadian authorities know some damning information that could put her in real hot water. Not a pleasant situation.

[JamesVincent]

See if he can find an attorney to work either on a payment plan or a contingency. He also may be able to find a pro se office in the court near where his father lived where they may able to tell him what the law actually is and what he can do as far as filing. They are, however, restricted from giving actual legal advice, as I have found out on many occasions but they may be able to point him in the right direction. If nothing else he should be able to find attorneys who give a free consultation, usually one hour, and they can give him advice if nothing else.

[Number Six]

Thanks for the feedback. I let Peter know and hope he follows up.