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Probate Attorney Nightmare Stories That Could Have Been Avoided #1

These are real stories of probate that could have been avoided. All of the names have been removed or changed.

Our first client nightmare is one of an untimely death of a spouse. Husband and Wife were married with three children. Unfortunately the Husband passed away very unexpectantly. For reasons unknown to our firm the Husband held title to the family home as his sole and separate property. It was always the intent of the Husband and Wife to have the title changed or the property put into a trust so that upon the Husband's death the Wife would receive the property. Sadly the couple never got around to it and when the Husband died the property remained as his sole and separate property. There was no will and no trust.

To understand the gravity of this situation you need to understand California law. In California if property is separate property at the time of death, EVEN IF YOU ARE MARRIED, the property will transfer to your spouse AND your children. If you have one child the separate property is split 50/50 between your spouse and child. If you have more than one child the property is split 1/3 to your spouse and 2/3 to your children. This means a few things. First, the real property or assets (money) will have to be split with your children. Second, if those children are minors the money will have to be accounted for and held for that child/those children until they turn 18 and then at age 18 they will receive the property (which most parents don't want).

The Wife came to our firm when she realized she needed to go through probate in order to have the ability to sell the house. The Wife loved the family home but it was time for the family to move on. BUT because the property had to be split between the Wife and the Children the Wife COULDN'T take all of the proceeds from the sale of the house and use them toward the purchase of a new home. In fact, she would only receive 1/3 of the proceeds from the sale of the house and the children would receive the other 2/3rds and the guardian of the estate of the children would make a decision about what purpose that money could be used for.

In addition, the probate process ended up costing over $15,000. Money that could have been spent on the children, or the Wife could have used for the purchase of the next home. The Wife had to find alternative housing between the sale of the house in probate and until the court authorized the funds to be released to her so she could purchase the next family home. The court process ended up taking over 9 months even though the house was the only item in the estate.

If only the Husband and Wife had done their estate plan prior to his death this all could have been avoided.

Don't wait to plan what you want to do with your assets when you die. Waiting could cost your family a lot of undue hardship and expense. Schedule a free consultation with our law firm today.


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