Hi, I have a question: My mother died in California a few weeks ago, leaving a surviving spouse and two sons (incl. me). We found a will in her safety deposit box at the bank from 1972 that leaves wills everything to her spouse, myself and my brother, but if the spouse cremates her (which he did-apparently they had argued about this, unbeknownst to us)then 2/3rds is left to me, 1/3 to my brother. I have already told my brother I will share everything equally with him, so that is not an issue. HOWEVER, my brother says he was told that in California a will is meaningless, everything automatically goes to the spouse. Is this true? This lawyer (Oakland area) also told him that if the spouse dies everything then goes to his son. This seems wildly unfair, especially since the sum of money involved (cash of approx 40000, plus 60000 in stepdad's account, stocks, bonds worth about 300,000)was inherited by my mother from her father. This sum was inherited AFTER the will was created. Other information: the spouse is our stepdad, not our father; they were married at the time she wrote the will. It was made with a lawyer, at the time (1972); also the person she named as power of attorney of will is a friend of hers who does not feel like doing it. Is she obligated to, and if not , how do we decide who has this power? I think if we asked her, she would do it, she is a nice person, just older now with less energy (but still sharp, and active). Finally, the alcoholic son of my stepdad has now moved in with the stepdad -he has already had the police over once to stop him from killing himself (strange stepfamily-I know!) and my brother is worried he will discover how to access the funds any day now. Can assets be frozen? Although my brother is in California, and lives close by, he is confused by all of this. I am a professor, living in Canada since 1988, and am about to fly down (again) to try to deal with this. What should I do first? Do you know of a decent lawyer in the Bay area who specializes in this? Here in Canada if someone has a legal will there is no contest, plus a will search is performed to make sure that it is valid. Thank you!
04/09/2011 |
Category: Wills and Es... ยป Will Contests |
State: California |
#24605
We are unable to determine why the brother claims the will is ineffective. As long as the will maker has proper mental capacity to make the will and it is properly witnessed, a will is valid and controls the disposition of the estate, and a residuary clause in the will typically governs how after-acquired property is distributed. The executor of the estate is responsible for making sure the assets are distributed and not dissipated before probate. If the appointed executor isn’t able to carry out her duties, it is possible to petition the court to appoint a successor.
Some assets, such as insurance policies or cd’s may name a beneficiary or pass automatically to a surviving joint owner outside the probate estate of the will. Assets held in trust, or in an account or policy with an insurer or financial institution with a named beneficiary, typically pass outside the probate process. Such assets go to the named beneficiary outside the probate process. If it is a survivorship account, or transfer on death account, it passes outside the probate process. Property held in trust is distributed according to the terms of the trust.
Injunctive relief consists of a court order called an injunction, requiring an individual to do or not do a specific action. It must be proven that without the injunction, harm will occur which cannot be remedied by money damages. To issue a preliminary injunction, the courts typically require proof that
(1) the movant has a ‘strong’ likelihood of success on the merits;
(2) the movant would otherwise suffer irreparable injury;
(3) the issuance of a preliminary injunction wouldn't cause substantial harm to others; and
(4) the public interest would be served by issuance of a preliminary injunction.
Please see out attorney directory at the following link:
http://lawyers.uslegal.com/wills-and-estates/california/
See also:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=08001-09000&file=8520-8525