Tillem & McNichol

Len Tillem and Rosie McNichol

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

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 707-996-4505, or at LenTillem.com. Len has a new video channel on YouTube.

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