Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len and Rosie,

My father passed away in December without a will.

He had been married to his second wife for almost seven years.

The house he was living in belonged to his wife long before they married but he did have a retirement account and some other small assets.

What happens to his assets now?

Does everything go to his wife or are his three adult children entitled to anything?

His wife has always been very nice, but this is an awkward subject and none of his children want to cause a problem.


Dear Wendy,

Anything your father held in joint tenancy with others will pass to the surviving joint tenants.

Any accounts with pay-on-death beneficiaries, such as your father’s life insurance (if any) and his retirement accounts, shall avoid probate altogether and will go to those beneficiaries your father designated.

Given that it was a second marriage, there’s a fairly good chance that your father may have kept his children on as designated beneficiaries.

If your father owned any assets in his name alone, without joint tenants or pay-on-death beneficiaries, then those assets are in your father’s probate estate.

Because your father had no will, his probate estate will pass by intestate succession, the law about who gets what when someone dies without a will. Any community property he owned will pass to his wife.

If your father had only one child, his wife and child would divide his separate property equally between them.

But since your father had three children, his wife inherits one-third of the separate property and you and your siblings will divide the remaining two-thirds of the separate property among them.

There may be problems. There could be a dispute between you, your siblings and your stepmother over what assets in the estate are community property going 100 percent to her, and what assets are separate property shared by all four of you.

If your father was already retired when he married your stepmother, then his estate should be entirely separate property. But if he was still employed, there is going to be some community property and some separate property. It can turn into a mess.

The sticking point may be your father’s personal possessions, because they have no title.

It wouldn’t be so nice to take away your step-mother’s dining room set, even if you want it to stay in the family.

What you should do is to talk to her about those items of your father’s that you would like to keep for yourself and try to work it out. Just remember that she was married to your father and has her own personal interest in any items of sentimental value.

As a rule, it’s very important to have an estate plan when you are in a blended family in which either or both spouses may have children from prior relationships.

Your father didn’t bother. Hopefully this won’t cause you problems.

Len and Rosie

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