San Francisco, CA asked in Estate Planning, Real Estate Law, Arbitration / Mediation Law and Probate for California

Q: Can my brother get 100% of real estate that he owned 50% and dad, that died, owned 50% because I'm adopted?

I was legally adopted by dad. dad lived and died in calif. property is in bartlesville, ok. have living trust, but property was never included in it. dad died 2015. Mom, Brother and I were beneficiaries. before anything was split up, Mom passed in jan. 2018. now it is just my brother and I. Brother says because I am not blood kin, I do not get anything. He wants to put property in trust and I do not. I would receive $2000 a month as my portion of rent. He tried to trick me into signing it over and I would not. Now he is angry and says he gets it all.

2 Lawyer Answers
Bruce Adrian Last
Bruce Adrian Last
  • Estate Planning Lawyer
  • Pleasant Hill, CA
  • Licensed in California

A: Dear San Francisco:

I would contact a lawyer right away about this matter. But here is some information to get you started. I am also assuming that Mom above is your birth mother.

You have a much-juristictional problem here. The proper jurisdiction for Probate law, which governs testate (wills), instate (no will or trust) and trust administration of a deceased person's property depends on a couple of facts.

1. Normally the state of the Decedent's residence is the proper jurisdiction for probate administration of testate and intestate estates.

2. However, if the Decedent owned real property in another state, the state where the real property is located is the proper jurisdiction. And, sometimes you may have probate in two states, a main probate in the state of the Decedent's residence, and an "ancillary probate" in the state where the real property is located.

3. With a Trust, the Trust itself may selected a jurisdiction, but in California it is the county where the trust is administered.

What does this have to do with adoption? The laws of how an adoptive child is treated for intestate succession will depending on the state with the property probate jurisdiction. Here in California we treat adopted children the same as blood children. For Oklahoma, you would need to ask an Oklahoma attorney.

The other issue is that the property was "left out of" the Trust. Normally, a good estate planning package contains a "Pour Over Will" which transfers property "left out of" a Trust into the Trust for administration. And, in California we have a petition procedure to accomplish this without going to probate.

It sounds like there is something else going on with this trust. I think a consultation with an attorney about your rights as a beneficiary is recommended. If you do not know where to find an attorney, you can try your local county bar association. These provide a referral to an attorney who provides a consultation for a low or no fee. In my home county of Contra Costa, it is $35.00 for a 30 minute consultation.

Best of luck.

N. Munro Merrick and John T. Kontrabecki agree with this answer

John T. Kontrabecki
John T. Kontrabecki
  • Arbitration & Mediation Lawyer
  • San Francisco, CA
  • Licensed in California

A: First of all, you do not say whether there was a will. If there was, then the will determines who gets what. If there was no will and the property was not included in the assets of the inter vivos trust, then the law of intestate succession determines who gets what and this law will govern your rights to this property. I expect the laws of California will be applied in this case, although the fact that the property is located in Oklahoma makes this a little complicated and it would be necessary to conduct further research on this point. It is possible that Oklahoma's law of intestate succession may apply.

As for your status as an adopted child versus of naturally borne child, in California the law will treat both of you the same. This is also a question that needs to be examined by an Oklahoma attorney.

You need to consult with counsel in both California and Oklahoma to get to the bottom of this.

N. Munro Merrick agrees with this answer

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