Re: Rights of Surviving Children

This is a case of wishful thinking. You should hire an attorney to probate the estate. Your husband can and should apply for letters of administration that will allow him to marshall the assets of the estate and distribute them according to the will if it is valid or according to the laws of intestacy if it is not valid. Under California community property laws, only earnings during marriage from labor are community property, unless separate property is comingled with community property. Even if everything were community property, then only 1/2 of the estate would be the wife's after death plus 1/3 of the decedent's 1/2. 2/3 of the decedent's 1/2 would go to the children.

Call me if you want assistance from us. The cost of legal fees in probate are paid from the estate and charged only after obtaining court approval.

Re: Rights of Surviving Children

The new wife is mistaken. As mentioned you should consult an Attorney ASAP and probate the estate. Good Luck!

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Re: Rights of Surviving Children

Thank you for your posting on LawGuru.com, and the opportunity for me to help you by responding to your posting.

The answer to your question is that your father in law's new wife is mistaken. His share is certainly community property, and as counsel Wessels pointed out, if most of it was acquired before marriage, almost all of it would be his separate property, not hers.

As Mr. Roth stated, you'll want to act quickly to file a probate administration case to protect the estate.

I hope this helps. If you do have other questions, feel that you need legal representation, or want legal advice, please feel free to email me directly at rmiller[at]expertlawfirm.com. It's my pleasure to help in any way that I can. Thank you.

Re: Rights of Surviving Children

First of all, I am sorry for your husband’s loss! None of this can be easy.

As to your father-in-law's new wife's community property statement, she is mistaken as to the effects of the community property laws. Everything your father-in-law had prior to marriage was his separate property. So as long as he did not enter into a transmutation agreement or did not gift his new wife his property, the property he had prior to marriage is still his separate property.

Given that he did not write a new will, I doubt that he entered into a transmutation agreement. That just leaves the question as to whether he put his new wife on title to his property and if so, why.

I strongly recommend you contact counsel to assist you.

If I can be of further assistance, please do not hesitate to contact me.

Sincerely,

Kai H. Wessels, Esq.

(Tel. 877-Wessels)