Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len & Rosie,

My mother’s second husband died two years ago. Shouldn’t all of his assets have been left to my mother?

Why is his will still in probate and why would his will go to probate if she is his surviving spouse?

She is still alive and needs this money to live on.

Jackie

Dear Jackie,

When a married person dies, there is usually no probate. Most married couples own all of their assets in joint tenancy, or within a revocable trust.

Most of the time, everything passes outright to the surviving spouse by right of survivorship, or is at least held within a trust for the benefit of the surviving spouse for his or her lifetime.

However, some couples hold title to their assets separately. If her husband’s will left everything to her, your mother could collect his estate outside of probate with a spousal property order obtained from the court.

But in many second marriages, one or both spouses have children or other beneficiaries that they want to protect. If your step-father left everything to your mother, she could make a new will and leave his beneficiaries nothing.

Your step-father’s will may have disinherited your mother, or left his estate in a testamentary trust (a trust created by a will) for her lifetime benefit.

There are other legal issues that may complicate matters.

If your step-father’s will was executed prior to his marriage with your mother, she may be entitled to an intestate share of his estate, either one-third or one-half of the total value of his separate property assets.

Unless the terms of the will state that is was made in contemplation of marriage to your mother, the will is effectively revoked with respect to your mother, and she would be entitled to an intestate share of the estate.

Another complication is that if your mother and step-father married before his retirement, then part of his estate is community property half owned by your mother, and part of it is separate property owned solely by him.

It can become very complicated trying to figure out what exactly what consists of your mother’s interest in her husband’s estate.

If your mother needs money right now, she does not necessarily have to wait until the end of probate. She can ask the executor to provide her with a monthly family allowance for her support.

If the executor is not willing to do this, then she has the right to petition the court for support from the estate.

If your mother has not already done so, now is a good time for her to sit down with a trusts and estates attorney to review her rights with respect to her husband’s estate.

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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