Legal Question in Wills and Trusts in California

if my elderly parents own their home but do not have a will when they die, will the surviving children be allowed to decide who can keep the home or will the courts decide? Also, what if the have a lien against their property for government medical insurance? My mother says that the home can't be siezed for liens or debts because of the homestead act.

Asked on 8/09/09, 12:40 pm

1 Answer from Attorneys

Larry L. Doan Law Office of Larry L. Doan

I believe that in the case of those who die intestate (without a will), the surviving issues (children) take equally. So, you and your siblings have to decide among yourselves what you want to do with the house. If you cannot, you'd have to ask the court to intervene. As far as the homestead exemption, it is $150,000 automatically if either one of your parents is 65 years or older. If there is equity in the house (after subtracting all other mortgages and encumbrances) more than that amount, then the government could get a court order to sell the house to execute on their lien. If less than that, no. If your parents had filed a declared homestead prior to the government recording its lien (which they might have done), then only a portion of the lien attached to the homestead, the amount more than the sum of all other mortgages and encumbrances plus the homestead exemption, at the time the lien was recorded.

Larry L. Doan, Esq.

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Answered on 8/09/09, 10:51 pm

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