How do I get any of my share of my deceased father’s property?

UPDATED: Sep 30, 2022

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How do I get any of my share of my deceased father’s property?

My father died without a Will in california and my 1/2 brother has taken everything of value and has done god knows what with it. He had somekind of special power of attorney. So to access my fathers bank accounts pension funds social security, etc. How can I get any of it back as his rightful heir?

Asked on December 17, 2016 under Estate Planning, California


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Sorry to hear about your father.
Since he died intestate (without a Will), the rules of intestate succession determine inheritance.
Under intestate succession, if your father had a surviving spouse, she inherits his entire estate.
If there is no surviving spouse, the estate is divided equally among the children.  If there is a predeceased child who had children (your father's grandchildren0, they would inherit the share their deceased parent would have inherited had the deceased parent survived.
Your brother's power of attorney should have ended at the time of your father's death.  No child inherits your father's Social Security because those benefits should have ended upon your father's death.  If your brother is receiving your father's Social Security, he is committing fraud and the Social Security Administration should be notified immediately.
As for your father's other assets (bank accounts, pension funds, etc.) that your brother has taken, you can sue your brother for conversion which is theft in a civil case.  Your remedy is a constructive trust which will require your brother to return the stolen assets to your father's estate.  If your brother has spent any of those funds, a constructive trust can be used to trace the proceeds and to recover items purchased or their value which can then be returned to the estate.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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