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g_racer · Feb 1, 2008, 11:58 PM

I'm not sure if this is the correct forum or not, but here's my question. My grandfather re-married after the death of his first wife, my maternal grandmother. His second wife was rather poor, but very nice and did treat him well until he died in 1983, after nearly 20 years of marriage. She never worked while they were together, or for the remaining 40+ years of her life. He owned a successful grocery store and several rental homes, which he sold and invested the money when he retired. After his funeral, his second wife told my mother, my uncle, and her two daughters that per his last wishes, when she dies, a couple of the CD's are to go to her daughters, with everything else going to my mother. My uncle wasn't to get anything because he received a large sum of money from his father (my grandfather) with the stipulation that he could pay it back, or not receive anything upon his death.

His second wife continued to mention through the years that the home was to go to my mother.

His second wife just died this past week. Upon the reading of her will, my mother, who had been told for nearly 25 years that she was going to get the home and other investments, is to be given $25,000. The rest of the estate, worth a minimum of $250,000 (the home is on the market for $200k, and the life insurance policy was $50k, however we don't really know what is left in the various CD's, etc.) is to go to her two step sisters. Of course my mother's stepsisters don't remember ever hearing that my mother was to get anything.

We are in California. As there isn't a will from my grandfather showing his original wishes, is there any recourse for my mother to get what should really be hers?

ScottGem · Feb 2, 2008, 04:09 AM

If your grandfather died intestate, then his estate should have been dividied this way: (according to this site: CCH Financial Planning Toolkit | California Intestate Succession Laws)

If the decedent leaves more than one child or children of a predeceased child, the surviving spouse gets one-third of the separate property in the intestate estate.

So, by law, the second wife should have only received 1/3 the estate with the other 2/3 being divided among his 2 children (unless he adopted the step children). However, since he died over 20 years ago, I'm not sure if anything can be done about that now.

As for the second wife's will. It doesn't matter one whit, what your mother was told over the years. Its what's in the will that counts.

I would consult an attorney to see whether you can challenge the will on the basis that the second wife should not have received the full estate. And therefore, part of her estate really belongs to your mother and uncle.

JudyKayTee · Feb 2, 2008, 07:44 AM

Originally Posted by ScottGem

If your grandfather died intestate, then his estate should have been dividied this way: (according to this site: CCH Financial Planning Toolkit | California Intestate Succession Laws)

If the decedent leaves more than one child or children of a predeceased child, the surviving spouse gets one-third of the separate property in the intestate estate.

So, by law, the second wife should have only received 1/3 the estate with the other 2/3 being divided among his 2 children (unless he adopted the step children). However, since he died over 20 years ago, I'm not sure if anything can be done about that now.

As for the second wife's will. It doesn't matter one whit, what your mother was told over the years. Its what's in the will that counts.

I would consult an attorney to see whether you can challenge the will on the basis that the second wife should not have received the full estate. And therefore, part of her estate really belongs to your mother and uncle.

I'm not reading that the Grandfather died intestate - I'm reading that he left a Will and also gave his wife (second wife) some instructions about his wishes, bequests not covered in his Will. Therefore, the estate went wherever - I guess to the wife - by Will.

(People leave instructions outside a Will all the time, particularly with second wives, with sort of a "this is what I want to happen but it's entirely up to you" instructions. Then the relationship between stepmother and stepchildren/grandchildren goes sour and the wife does whatever is "entirely up" to her. No idea, of course, if this happened here and I'm not reading anything into this, just stating what I have worked with.)

And, yes, nothing, no oral agreements, no written agreements, no promises - modify the Will. The Will is probated (and enforced) as written.

s_cianci · Feb 2, 2008, 07:54 AM

It appears that your step-grandmother wrote her will to make her step-sisters the beneficiaries. As your grandfather had no will of his own, upon his death all of his property and assets became your step-grandmother's, to dispose of as she wished and, upon her own death, to will to whomever she wished. Evidently she's done just that. Speak with a probate attorney to be sure but I really don't think you have much recourse in this situation.

ScottGem · Feb 2, 2008, 08:00 AM

Originally Posted by s_cianci

As your grandfather had no will of his own, upon his death all of his property and assets became your step-grandmother's,

I'm afraid you are wrong here. I thought the same, but check the link I provided. According to CA law, if there are surviving children, the spouse does not get the whole estate. The spouse gets 50% if there is one child, 33% if there are multiple children.

To Judy,
Read the last line of the OP.

JudyKayTee · Feb 2, 2008, 08:08 AM

Originally Posted by ScottGem

I'm afraid you are wrong here. I thought the same, but check the link I provided. According to CA law, if there are surviving children, the spouse does not get the whole estate. The spouse gets 50% if there is one child, 33% if there are multiple children.

To Judy,
Read the last line of the OP.

Hmm - I read that line to mean that he left a Will but it didn't express these specific wishes. Maybe the original poster will clarify - wonder how they got anything transferred over to the wife if it didn't go through Probate?

NY Law is pretty much the same regarding distribution of property if the person dies intestate (without a Will).

g_racer · Feb 2, 2008, 10:05 AM

Thank you. My grandfather did not leave a will. Per the will of his second wife, hers is not to be probated.

As his second wife was thought of as a second mother to my mom and uncle, rather than step mom, they didn't fight for anything upon his death. Frankly, if she had spent everything to support herself, there wouldn't have been any issue whatsoever. Or, if the remaining assets were split between my mother and her two step-sisters (figuring that per the agreement between my uncle and grandfather, he was to get nothing).

As far as everything going into just her name when my grandfather died, I believe that after nearly 20 years of marriage, most of the assets were listed in both names.

Not knowing the laws, I'm assuming that since my grandfather died over 24 years ago, there really isn't anything that can be done now. Am I correct in this thinking?

JudyKayTee · Feb 2, 2008, 12:18 PM

Originally Posted by g_racer

Thank you. My grandfather did not leave a will. Per the will of his second wife, hers is not to be probated.

As his second wife was thought of as a second mother to my mom and uncle, rather than step mom, they didn't fight for anything upon his death. Frankly, if she had spent everything to support herself, there wouldn't have been any issue whatsoever. Or, if the remaining assets were split between my mother and her two step-sisters (figuring that per the agreement between my uncle and grandfather, he was to get nothing).

As far as everything going into just her name when my grandfather died, I believe that after nearly 20 years of marriage, most of the assets were listed in both names.

Not knowing the laws, I'm assuming that since my grandfather died over 24 years ago, there really isn't anything that can be done now. Am I correct in this thinking?

With apologies to Scott whose reading skills are apparently better than mine!

I don't know how assets transferred from your Grandfather to your step-grandmother without some type of probate process - ? Was EVERYTHING joint? I am also not aware of any State where you can decide whether your Will should be probated.

That being said - if everything WAS joint, then it was as much the step-Grandmother's as the Grandfathers and it is hers to do with whatever she chooses.

I doubt you can go back 24 years and change anything.

g_racer · Feb 2, 2008, 03:00 PM

Thank you. That's kind of what I was figuring. I didn't think it would really be worth fighting over anyway. I guess we can just think that she's now having to spend eternity explaining to my grandfather and grandmother why she decided to go against one of his last wishes, and her daughters can spend the rest of their lives knowing that in reality, at least some of the assets probably should not have been theirs.

ScottGem · Feb 2, 2008, 03:55 PM

I agree with Judy, that provision about no probate is extremely odd and probably not legal. And its probable that everything, including the house, was held as joint tenants with right of survivorship. In which case, your grandfather had no estate to process. So everything went to his second wife. I suspect she already added her children as joint tenants to the CDs which is why you know nothing about them since they were outside the estate.

So there really isn't anything that you will likely be able to do about this.