Estate Planning Defined – How Can an HEIR AT LAW Recover Her Share of an Inheritance After the Close of the Probate of Her Relative’s Estate?

| December 8, 2010 | 0 Comments

I recently received a question from a potential client who called me regarding the probate of a relative’s estate. She told me that her relative died without a Last Will & Testament in place. Apparently, the Caller was not notified that her relative had died and she did not receive any property from her relative’s estate, even though her siblings received property from the estate. The Caller told me that the Executor of the estate—who was another of her relatives and with whom she has had poor relations—purposely ignored her both in providing her notice of the relative’s death and in distributing the property in the relative’s estate. The Caller asked me the following question: “Since my relative died without a valid Will in place, I, as one of her heirs at law, should be entitled to receive a share of the estate, right? The problem is that I was never notified of my relative’s death and I never received any property from the estate, even though my siblings received some property. I only just found out about this issue over the Thanksgiving Holiday. Now, the probate of my relative’s estate has already been closed. Can I correct this mistake and receive my share of the estate?

I responded to the Caller as follows:

First of all, if the deceased person (who is referred to as the “Decedent”) died intestate, then this means that the Decedent did not have a valid Will & Testament in place when he or she died. Assuming this to be the case, then the title of the person who is appointed by the Court to oversee the administration of the estate of a Decedent who died without a valid Will & Testament in place, i.e., who died “intestate,” is the ADMINISTRATOR of the Estate—not the Executor of the Estate. (An EXECUTOR is the title of the person who is appointed by the Court to oversee the administration of the estate of a Decedent who died WITH a valid Will & Testament in place). In addition, the appointment of the ADMINISTRATOR would only have come in response to a Petition to open a FORMAL PROBATE of the Decedent’s estate.

Who Could Have Filed the Petition for Probate in the Caller’s Case? Anyone who has an interest in a Decedent’s estate can prepare and file a Petition to open a FORMAL PROBATE of the Decedent’s estate. Under California law, such “interested persons” include spouses, children, siblings, other relatives, friends—even the creditors of a Decedent can file a petition to open a probate of the Decedent’s estate.

After the Court has appointed the ADMINISTRATOR to “be in charge” of the Decedent’s estate, he or she has certain responsibilities that must be carried out. Among the Administrator’s responsibilities is the duty to notify all of the Decedent’s HEIRS AT LAW that the Decedent has died (by the way, in the Caller’s case, this task would have had to have been completed when the Petition for Probate was filed with the Court). In addition to other bits of information contained in the Petition for Probate, it would have had to clearly state that the Decedent died intestate.

Thus, under California law, the Decedent’s HEIRS AT LAW—who have survived the Decedent by 120 hours from the time of the Decedent’s death—are entitled to share the property of the Decedent’s estate after all of the Decedent’s debts, taxes, and expenses of administration have been paid.

Who Are the Decedent’s HEIRS AT LAW in the Caller’s Case? Based on what the Caller told me, I assumed that the Decedent was not survived by a spouse or a registered domestic partner. I also assumed that the Decedent was not survived by any children (the Caller did not tell me how she was related to the Decedent). California Probate Code Section 6402 provides the list of persons who are entitled to inherit the property of an estate of a Decedent who died intestate and was not survived by either a spouse or registered domestic partner.

Section 6402 provides, in part, that the property remaining in the Decedent’s estate at the close of probate is distributed to the following persons (see Section 6402, subsections (a), (b), (c), and (d)):

  • If the Decedent is not survived by a surviving spouse or registered domestic partner, then the property passes to the Decedent’s Issue (e.g., children, or if a child predeceased the Decedent but leaves children of his or her own who survive the Decedent, then the Decedent’s grandchildren by that predeceased child; the term, issue, includes children, grandchildren, and more remote descendants);
  • If the Decedent is not survived by a surviving spouse, registered domestic partner or any issue, then the property passes to the Decedent’s parent or parents (equally) who survive the Decedent;
  • If the Decedent is not survived by a surviving spouse, registered domestic partner, any issue, or any parents, then the property passes to the issue of the Decedent’s parents (who would include the Decedent’s siblings and half siblings, nieces, nephews, and more remote issue; the shares of property to which each of these persons would be entitled would depend on how closely the relative and the Decedent were related).
  • If the Decedent is not survived by a surviving spouse, registered domestic partner, any issue, any parents, or any issue of parents, then the property passes to the Decedent’s surviving grandparent or grandparents, with those grandparents to share the property equally; if none of the Decedent’s grandparents survives him/her, then the property passes to the issue of the Decedent’s grandparents, the shares of property to which each of these persons would be entitled would depend on how closely the relative and the Decedent were related).

If, based on the foregoing, the Caller was an HEIR AT LAW of the Decedent AND the Administrator did not make a good faith effort—based on a reasonable and diligent search through the Decedent’s papers and the use of all available tools, including computer-based search tools—to locate the Caller, then the Caller may very well have a case against the Administrator for failing to carry out his/her appointed duties. I told the Caller that she would have to decide whether to pursue the inheritance that she believed she was entitled to. Factors for her to consider when deciding whether to pursue her claim of an inheritance include the following:

  • The size of the Decedent’s estate;
  • The Caller’s ability to pay for an attorney at assist her—at least in the beginning (she may be reimbursed for her legal fees later, if the Administrator is found to have acted recklessly or carelessly); and
  • The certainty that her familial relationship to the Decedent entitled her to be considered one of the Decedent’s HEIRS AT LAW and, thus, entitled to share the property of the Decedent’s estate.

Disclaimer: Please note that the information in this blog post does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact-specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. Finally, the information provided to you in this blog post does not create an attorney-client relationship.

Notwithstanding the disclaimer, I hope this information has been helpful. Please leave a comment about this post if you have the time. Thank you. James B. Creighton, Esq., Creighton Law Offices

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