Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len & Rosie,When my mother-in-law passed away, we were absolutely shocked to find out that she did not have a will, or any sort of estate planning done.

My husband is her oldest child, and at one time had a power-of-attorney for her, but it was so long ago that he can’t find the paperwork and he doesn’t even know if it was durable or just temporary.

His mother had a domestic partnership with the man she’d been living with for the last 12 years, but he seems to want my husband to take care of the details of the estate and assumes that other than the house they owned together, she would have wanted everything split between her two children.

We can’t seem to find any information on how to take the elementary step of asking the court for my husband to be appointed the personal representative of his mother’s estate.

Can you possibly tell us what to do?

April

Dear April,

Your husband should obtain copies of his mother’s account information, including life insurance policies, the deed to her home, and the title and registration papers to her car, if she owned one.

The basic idea is that to complete the administration of his mother’s estate he has to start by determining exactly what his mother owned and how she owned it.

Anything your mother held in joint tenancy with her partner belongs to him. If the home is in joint tenancy, he’ll need to sign and record an affidavit of death of joint tenant to remove your mother-in-law from the title to the home.

The home should also be appraised to determine its new cost basis for capital gains tax purposes.

If your mother-in-law and her partner were registered as domestic partners with the California Secretary of State, then they will be treated as spouses for all probate purposes in California.

However, if they registered as domestic partners with a city or county, as some localities provide, or if they were just shacking up together, then the survivor won’t get any benefit from California’s domestic partnership law.

After any joint tenancy and pay-on-death assets are distributed, all that’s left is your mother-in-law’s probate estate, consisting of assets titled solely in her name.

If the estate is worth more than $150,000, it will be necessary to file for probate in the Superior Court.

If the estate is under $150,000, the beneficiaries can collect the assets using small estate declarations under California Probate Code section 13101. Automobiles may be transferred 40 days or more after the date of death using DMV Form REG-5.

The surviving domestic partner (if registered with the Secretary of State) inherits all of the community property, if any, and either one-third of the separate property (if she had two or more children) or one-half of the separate property (if your husband is her only child).

The rest of the estate passes equally between your mother-in-law’s children.

Len and Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 707-996-4505.

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