How do I get my son's personal property if he lived with his girlfriend upon passing?
Full Question:
Answer:
I am unable to determine from your question whether the son left a will or if the estate has already been probated. When a person dies, their assets are distributed in the probate process. If a person dies with a will, an executor is named to handle the distribution of the estate. If the person dies without a will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process.
Joint tenancy is a form of ownership by two or more individuals together that differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. State law, which varies by state, controls the creation of a joint tenancy in real property. Joint tenancy property passes outside of probate; however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. Each joint tenant has an equal, undivided interest in the whole property, and may enter onto, take possession of the whole, occupy, and use every portion of the common property at all times and in all circumstances. All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate.
In the case of a life tenant who holds a life estate, when the life tenant dies, their interest may pass to the remaindermen. Title may also return to the person giving or deeding the property or to his/her surviving children or descendants upon the death of the life tenant--this is called "reversion."
The executor or administrator may take possession as allowed by the probate rules after the estate's case is opened in court. In some cases where a person is wrongfully failing to deliver property owned by another, an petition may be made for an order to deliver the property. The local sherriff can enforce the order by taking possession.
The following are CA statutes:
11750.
(a) The personal representative is responsible for
distribution of the property in the estate in compliance with the
terms of the court order for distribution.
(b) A distributee may demand, sue for, and recover from the
personal representative or any person in possession, property to
which the distributee is entitled.
(c) A distribution of property made in compliance with the terms
of the court order for distribution is valid as to a person acting in
good faith and for a valuable consideration.
11950.
(a) If two or more beneficiaries are entitled to the
distribution of undivided interests in property and have not agreed
among themselves to a partition, allotment, or other division of the
property, any of them, or the personal representative at the request
of any of them, may petition the court to make a partition,
allotment, or other division of the property that will be equitable
and will avoid the distribution of undivided interests.
(b) A proceeding under this chapter is limited to interests in the
property that are subject to administration and does not include
other interests except to the extent the owners of other interests in
the property consent to be bound by the partition, allotment, or
other division.
11951.
(a) A petition under this chapter may be filed at any time
before an order for distribution of the affected property becomes
final.
(b) The petition shall:
(1) Describe the property.
(2) State the names of the persons having or claiming undivided
interests.
(3) Describe the undivided interests, so far as known to the
petitioner.
11952.
(a) Notice of the hearing on the petition shall be given as
provided in Section 1220 to the personal representative and to the
persons entitled to distribution of the undivided interests.
(b) At the hearing the persons entitled to distribution of the
undivided interests shall be considered the parties to the proceeding
whether or not they have appeared or filed a responsive pleading.
No one shall be considered as a plaintiff or as a defendant.
(c) Any objection to the jurisdiction of the court shall be made
and resolved in the manner prescribed in Part 19 (commencing with
Section 850) of Division 2.
11953.
(a) The court shall partition, allot, or otherwise divide
the property so that each party receives property with a value
proportionate to the value of the party's interest in the whole.
(b) The court may direct the personal representative to sell
property where, under the circumstances, sale would be more equitable
than partition and where the property cannot conveniently be
allotted to any one party. The sale shall be conducted in the same
manner as other sales made during administration of an estate.
(c) Any two or more parties may agree to accept undivided
interests.
11954.
(a) The court, in its discretion, may appoint one or three
referees to partition property capable of being partitioned, if
requested to do so by a party. The number of referees appointed must
conform to the request of at least one of the parties.
(b) The referees shall have the powers and perform the duties of
referees in, and the court shall have the same powers with respect
to their report as in, partition actions under Title 10.5 (commencing
with Section 872.010) of Part 2 of the Code of Civil Procedure.
11955.
The expenses of partition shall be equitably apportioned by
the court among the parties, but each party must pay the party's own
attorney's fees. The amount charged to each party shall be included
and specified in the order and, to the extent unpaid, constitutes a
lien on the property allotted to the party.
11956.
(a) The partition, allotment, or other division made by the
court shall control in proceedings for distribution, unless modified
for good cause on reasonable notice.
(b) The proceedings leading to the partition, allotment, or other
division may be reviewed on appeal from the order for distribution.