Q: Are my nieces automatically entitled to a share in my dads estate? Does one have to file for probate court?
My dad drafted a will and purposely left out my deceased sister and her two adult children. His intention was to leave his clear estate to my surviving sister & I. The reason for the question is the will states (deceased child with issue then living.) The will was drafted about one year after my nieces mother / my sister passed. My surviving sister / executor informed me that she retained a probate attorney and that she was made executor but the will was tossed out by the Judge due to a forgotten child clause. I know this not to be true because I have not been notified of a preceding and there is no case number or case name in the court system. My sister has clearly ill informed me and has sided with our nieces who also coincidently owes her money. I have not challenged her on this yet and am just waiting to see what she does next. I believe the will has to be seen by a Judge before she can act. The end of March will be 90 days since my dad has passed.
A:
If it hasn't happened yet, you can file a probate case. See: http://www.courts.ca.gov/8865.htm
Have a lawyer review the will. More details are necessary to provide a professional analysis of your issue. The best first step is an Initial Consultation with an Attorney. You can read more about me, my credentials, awards, honors, testimonials, and media appearances/ publications on my law practice website. I practice law in CA, NY, MA, and DC in the following areas of law: Business & Contracts, Criminal Defense, Divorce & Child Custody, and Education Law. This answer does not constitute legal advice; make any predictions, guarantees, or warranties; or create any Attorney-Client relationship.
A:
Corona, CA:
I agree that you should have a lawyer take a look at the will.
The "omitted child" provision of the California Probate Code (section 21620 and 21622) only apply where the decedent omitted a child born or adopted after execution of the will, or if the decedent mistakenly believed the child to be dead at the time the will was drafted. Neither of which appears to apply here.
If you do not have an attorney, you can try your local county bar association. Most provide free or low cost attorney consultations.
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