What happens to a persons home if a person dies with a will or trust

UPDATED: Oct 1, 2022

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What happens to a persons home if a person dies with a will or trust

My father passed away last December. He had
been married to my mother for over 50 years
but he never made a will. I am scared for her
because she doesnt want her home to be
taken from her. She also left behind 10 children
who 90 percent of them agree everything he
left is now hers. How can my mother get help
to have my fathers home be under her name?

Asked on August 1, 2018 under Estate Planning, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

When someone dies without a will, their property passes by "intestate succession," or the rules for who gets what when there is no will. In your state (CA), the surviving spouse gets all the community property (everything and all the money acquired during marriage, other than anything inherited by or gifted to the deceased spouse) and (when there are multiple chidren) 1/3 the deceased's separate property (anything he owned premarriage, or which was gifted to or inherited by him during marriage); the children share the other 2/3 separate property.
There are additional wrinkles: 
1) Certain assets of your father may go directly to your mother without regard to intestate succession: for example, if he and she owned a house as "joint tenants with right of survivorship" or JTROS, on his death, it automatically became solely hers.
2) Any heir who is willing to give up his/her inheritance can "disclaim" it and it will go to the other heirs. If all children disclaimed, your mother would get everything.
3) Any mortgages must be paid on real estate or any loans on cars must be paid or the property/car can be foreclosed upon or repossessed.
4) Other persons or business whom your father owed money can file claims against his estate (to be paid from the money, etc. he left behind).
The best thing to do is to hire a probate lawyer to help--the lawyer can examine how the different assets were owned, see what goes to your mother directly, and what is subject to intestate succession; can help any children willing to give up their shares to do so; can respond to any claims against the estate, or by mortgagees or auto lenders; and can do the paperwork to put everything she inherits into your mother's name.

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 AttorneyPages.com 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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