If my mom died in California and left a living will that indicates my brother & I are to get everything and split it 50/50, what entitlement does her husband of the last 9 years have?
Also, if she has a mortgage that is more than the worth of the house what happens if we foreclose? She has some money in another account, is that then used against the house?
2 Answers from Attorneys
Sorry for your loss.
Did your mother have a Will or a Living Trust? A living will is a document which states someone's wishes regarding medical care.
Your step-father has a right to his half of any community property assets. In regards to your mother's half of the community property and her separate property, if your mother and step-father married after the Will or Trust were executed and the marriage is not mentioned in the document, then he has a partial claim on the assets of your mother's estate as an omitted spouse. However, if your step-father is mentioned in the documents, then he may not have a claim except for any community property claim he could make.
The exposure of the other assets to the mortgage depends on the type of mortgage - recourse or non-recourse.
You need to talk to an attorney. The property would be subject to any recorded deed of trust which was security for a loan, so if it is in default, the lender (bank) can still foreclose on the property. Recourse/ nonrecourse has nothing to do with the issue. If you are an heir, you don't foreclose, you worry about getting foreclosed on.
If your mother died with a husband (meaning she was not divorced from him at the time),) then he would have rights to his half of any community property, and may be able to make additional claims as a pretermitted heir.
There are a lot of issues here, that need to be discussed in person.