Q: Son bought a home, wife signed off, they were separated 31 years; he died. Can she claim his estate?
His mom wants to start a probate to sell the home, but she is worried about his (ex) wife making claims against his estate. They were separated for 31 years and he died without divorcing her. He bought the home 2 years ago and died one year ago. How much would the probate cost and can the mom keep the ex wife out?
A: The ex may make a claim but that will be dealt with when it happens. The cost of probate is based on the value of the house. I have a probate fee calculator on my website which can give you an estimate of cost. https://californiaprobate.info/probate-fee-calculator/
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A:
Whether the "ex" has any rights depends on whether they were legally separated or not. Being legally separated requires a court order; it is a lot like getting divorced. Until you have that piece of paper, whatever you earn and build is community property.
If the son acquired the house through separate property, like gifts or he bought it with assets he owned it from before the marriage, then it probably his separate property.
IF there was no legal separation, whatever the son directed in his Will, the "ex" will still get half of the community property. The son cannot give away the half of the community property that is not his. If son died without a Will then ALL of his community property (and half of his separate property) go to his wife. The other half of the separate property goes to his parents. This assumes no children together.
IF there WAS a legal separation, then the "ex" has no rights whatsoever. You follow the wishes of the son's Will, or if he died without one (or children) then everything goes to his parents.
As to the cost of Probate, that will depend on whether you use an attorney or do it yourself. If you do it all yourself and there are no problems you will only pay a couple thousand in court fees and such. If you hire an attorney the fees are set by the State as a percentage of the GROSS estate (NOT the net, so the whole value of the house rather than the value minus the mortgage). The fee is:
4% of the first $100,000
3% of the next $100,000
2% of the next $800,000
1% of the next $9 million
If it then becomes contested by the "ex", then the attorney is allowed to ask the judge for higher fees.
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