Hemet, CA asked in Probate for California

Q: Who inherits a mothers estate?

Mother, divorced, dies. She had two children. One died within an hour of her and was never married and had no issue. Does the estate go fully to the living child or does the estranged father who divorced the mother inherit the deceased sons share?

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2 Lawyer Answers
Richard Samuel Price
Richard Samuel Price
Answered
  • Probate Lawyer
  • Redlands, CA
  • Licensed in California

A: I assume that the mother died without a will.

If there is a question as to the order of death or whether there was a simultaneous death, then you may have to bring a Petition to Determine Order of Death and Proceeding to Determine Survival.

However, if there is no doubt that the child died after the mother, and that child had no children, then there are two probate proceedings. The mother's estate would be divided in two. The deceased child's estate, which presumably is half of the mother's estate, would go to his surviving father.

Bruce Adrian Last
Bruce Adrian Last
Answered
  • Probate Lawyer
  • Pleasant Hill, CA
  • Licensed in California

A: Hemet, CA:

While I generally agree with Mr. Price, based on the facts you present two probates should not be required.

The California Probate Code requires that an intestate heir (intestacy is how estates are distributed if there is no will) survive the decedent by at least 120 hours. (Probate Code s. 6403). If that time requirement is not met, the heir is treated as having died before the decedent.

If there was a will, the will would likely have a survivorship time period requirement.

In your case, if the son died within an hour of the mother, the son is treated as per-deceasing the mother. This results in distribution of the estate only to the living child of the decedent.

I encourage you to discuss this with an attorney, who can help you or the son probate the estate (or suggest alternatives if a probate is not required.) A good place to start is your local county bar association, most of which offer free or low cost consultations with attorneys who work in the legal field where you require assistance.

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