Transferring husband's assets after he has passed away.

Dear Len & Rosie,

My husband of 45 years died recently. He has sizable savings and checking accounts at a local bank, all registered in his own name. I am not pleased with having to do business with that bank. I visited them after my husband’s death, and they were very rude to me. They would not give me my husband’s money, and they would not explain why. They just told me to go to a lawyer. I left in tears. Can’t I just transfer all of my husband’s accounts to my bank?

Ida

Dear Ida:

You do not have to keep the money in your husband’s old bank, and you should not have to do business with people who treat you poorly. You can put the money into your own bank accounts, as long as it is supposed to go to you. It all depends on the classification of the accounts as either community property, or the separate property of your husband, and whether or not your husband died with a will.

The money is probably community property. After a 45 year marriage, there is usually little separate property to be found. Everything acquired by either spouse during the marriage is assumed to be community property, except for property received as an inheritance or gift, which is separate property.

Let’s suppose the accounts are community property. Under the law, you already own half, no matter how the accounts are titled. If your husband had a will that leaves his estate to anyone other than you, you get half of the accounts, and your husband’s heirs get the other half. If your husband died without a will, then under the laws of intestate succession, you get everything, as your husband’s surviving spouse.

On the other hand, if the accounts were your husband’s separate property, and he has a will giving everything to his children, then all of the money will pass by the will, and you will get nothing. If the accounts are separate property, and your husband died with no will, then you will split the money with his children. If there is one child, you each will get one-half. If there are two or more children, you will get one-third and the children will split the rest.

That’s the easy part. The hard part is getting the money. If the accounts are worth less than $150,000 in total, then you can collect them 40 days after your husband’s death with a death certificate and a small estate declaration under California Probate Code section 13101. Many banks already have their forms for this. Since your husband’s bank is not one of them, you will probably have to pay a lawyer to draw up the declaration.

If the accounts are worth more than $150,000, then you can hire an attorney to file a spousal property petition to obtain a court order putting the accounts into your name. It will take about a month to file the petition, get a hearing date before the judge, and obtain a court order. If anything is to pass to your husband’s children, they’ll have to get it through probate.

Len & Rosie
 

Father passed away before divorce was finalized.

Dear Len & Rosie,

My father recently passed away without a will. As far as I understand, my mother and he never finalized their divorce because the settlement agreement had not been filed, even though they filed for divorce in 1989.

My father’s wishes were that my mother would receive half of the home and my brother, sister and I were to share the remaining half interest. My mother has now retained a probate attorney and we are not sure what her intentions are.

In addition, my paternal grandmother willed some property to us three children and my mother is now trying to claim that property even though my grandmother specifically stated in her will that my mother was to be excluded and if she contested the will, she was to receive $1. Do you recommend that I retain my own probate attorney?

Janene

Dear Janene,

There are two separate cases here: Your father’s estate and your grandmother’s estate. With respect to your father, you have problems. If the divorce had been finalized then your mother would have been automatically disinherited from your father’s will, if he had one, and would not inherit any portion of the estate by intestate succession, if he had no will.

But since your parents were not divorced upon your father’s death, your mother is still the surviving spouse. The fact that they have been separated for two decades doesn’t change this. She gets to inherit whatever your father left her in his will. If he died intestate (without a will), your mother shall inherit all of your father’s community property and one-third of his separate property, because he was survived by more than one child.

As for your grandmother’s estate, your rights depend on the exact terms of your grandmother’s will, which we have not had the opportunity to review. If your grandmother left everything to your father, and then died before him, there’s a good chance that all or a portion of your grandmother’s estate shall pass into your father’s estate to be distributed to your mother in addition to your father’s children. But if your grandmother’s will left you something specifically, rather than you inheriting through your father, your father’s death and your mother’s claims should not affect your own inheritance.

You should probably sit down with a trusts and estates attorney and review both the estates of both your father and grandmother because the particular facts in your situation are important and will affect your rights. But you should know that it’s your father’s own fault that his wife may inherit so much. His wishes won’t count unless they were incorporated into an estate plan that he didn’t get around to creating while he had twenty years to complete. Don’t blame your mother for your father’s inaction.

Len & Rosie