Will There Be Problems Transferring Property if My Father's Estate Was Never Probated?
Full Question:
Answer:
The answer will depend in part on whether the father had a will. If not, then his children would have inherited a portion of his estate under the state laws of intestacy (see below). That could create complications if the mother were to try to transfer the entire property in her will, as she would not be the owner of the entire property unless the children transferred their shares to the mother.
We are prohibited from giving legal advice, as this service provides information of a general legal nature. We suggest you contact a local attorney who can review all the facts and documents involved.
Please see the following CA statutes:
6401. (a) As to community property, the intestate share of the
surviving spouse is the one-half of the community property that
belongs to the decedent under Section 100.
(b) As to quasi-community property, the intestate share of the
surviving spouse is the one-half of the quasi-community property that
belongs to the decedent under Section 101.
(c) As to separate property, the intestate share of the surviving
spouse or surviving domestic partner, as defined in subdivision (b)
of Section 37, is as follows:
(1) The entire intestate estate if the decedent did not leave any
surviving issue, parent, brother, sister, or issue of a deceased
brother or sister.
(2) One-half of the intestate estate in the following cases:
(A) Where the decedent leaves only one child or the issue of one
deceased child.
(B) Where the decedent leaves no issue but leaves a parent or
parents or their issue or the issue of either of them.
(3) One-third of the intestate estate in the following cases:
(A) Where the decedent leaves more than one child.
(B) Where the decedent leaves one child and the issue of one or
more deceased children.
(C) Where the decedent leaves issue of two or more deceased
children.
6402. Except as provided in Section 6402.5, the part of the
intestate estate not passing to the surviving spouse or surviving
domestic partner, as defined in subdivision (b) of Section 37, under
Section 6401, or the entire intestate estate if there is no surviving
spouse or domestic partner, passes as follows:
(a) To the issue of the decedent, the issue taking equally if they
are all of the same degree of kinship to the decedent, but if of
unequal degree those of more remote degree take in the manner
provided in Section 240.
(b) If there is no surviving issue, to the decedent's parent or
parents equally.
(c) If there is no surviving issue or parent, to the issue of the
parents or either of them, the issue taking equally if they are all
of the same degree of kinship to the decedent, but if of unequal
degree those of more remote degree take in the manner provided in
Section 240.
(d) If there is no surviving issue, parent or issue of a parent,
but the decedent is survived by one or more grandparents or issue of
grandparents, to the grandparent or grandparents equally, or to the
issue of those grandparents if there is no surviving grandparent, the
issue taking equally if they are all of the same degree of kinship
to the decedent, but if of unequal degree those of more remote degree
take in the manner provided in Section 240.
(e) If there is no surviving issue, parent or issue of a parent,
grandparent or issue of a grandparent, but the decedent is survived
by the issue of a predeceased spouse, to that issue, the issue taking
equally if they are all of the same degree of kinship to the
predeceased spouse, but if of unequal degree those of more remote
degree take in the manner provided in Section 240.
(f) If there is no surviving issue, parent or issue of a parent,
grandparent or issue of a grandparent, or issue of a predeceased
spouse, but the decedent is survived by next of kin, to the next of
kin in equal degree, but where there are two or more collateral
kindred in equal degree who claim through different ancestors, those
who claim through the nearest ancestor are preferred to those
claiming through an ancestor more remote.
(g) If there is no surviving next of kin of the decedent and no
surviving issue of a predeceased spouse of the decedent, but the
decedent is survived by the parents of a predeceased spouse or the
issue of those parents, to the parent or parents equally, or to the
issue of those parents if both are deceased, the issue taking equally
if they are all of the same degree of kinship to the predeceased
spouse, but if of unequal degree those of more remote degree take in
the manner provided in Section 240.
