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Do I have a case?

My father-in-law died unexpectedly last month. He did not leave a notarized Will but 10 days before his death, he did leave a paper explaining that he wanted half of everything, plus his entire life insurance, to go to his son, my husband. Did I mention that his wife moved out 7 months prior? Well she did, she left him with the intent to divorce and now apparently she thinks she’s struck gold. She plans to take everything.

Asked on February 27, 2018 under Estate Planning, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If there is no will--and a "paper" explaining what he wanted done with his estate, has *no* legal effect whatsoever unless it was executed and witnessed like a will--then your father-in-law's estate passes by "intestate succession." That means his wife--and "estranged" or not, if they never divorced, she is still his wife--gets ALL his "community property," or everything he obtained, earned, bought, acquired, etc. during marriage (even while they were apart) other than what he inherited or was given as a gift; and between 1/3 and 1/2 of all his "separate" property, or what he inherited, was gifted, or had pre-marriage. That, unfortunately, is the law: if your father-in-law wanted to protect his son, he should have had a will and/or divorced his wife.
Your husband should consult with a probate attorney to see exactly what he is inherited (i.e. how much of the separate property) and make sure he gets it.


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