Antioch, CA asked in Estate Planning for California

Q: Inheritance Time Frame

My husband has a terminal illness in which he is expected to live 2-3 weeks, I called his only sister to inform the family (his sister and father)about his prognosis, only to be informed that my father in law had passed away in late April. My father in law and my sis in law are located in New Hampshire and we are located in California. Patricia (my sis in law) has been the POA for my father in law and failed to inform my husband of his father's death. The relationship between my husband and his sister has been strained for quite some time, but as the POA she is not acting in good faith. I know my father in law's will stipulates that his estate is to be divided equally amongst his 2 children. Since my father in law passed away in April would my husband or I as his wife be entitled to claim his portion of his inheritance? Since my husband was alive in April would he (or I as his spouse) be entitled to collect his inheritance?

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2 Lawyer Answers

Jeffrey Louis Gaffney

  • Estate Planning Lawyer
  • Carlsbad, CA
  • Licensed in California

A: The answer depends on whether there was a Will or a Trust or not. If there were such documents, then they would control completely what happens to the assets of your late father-in-law.

Many Wills and Trusts require that the heir survive the deceased by a certain amount of time but it is rarely more than 30 days.

If there was no Will, then most states (including New Hampshire) distribute the entire estate of a widower to his children equally. The heir only has to survive the deceased by 120 hours.

If your husband has an asset coming to him, then it is his to control by his Will or Trust. It is his separate property to decide what to do with it, even if it is not yet in his hands.

If your husband does not yet have his affairs in order, then please have him take care of that right away and get at least a Will, but probably also a Living Trust.

James Edward Berge agrees with this answer

James Edward Berge

  • Estate Planning Lawyer
  • San Jose, CA
  • Licensed in California

A: I completely agree with Jeff’s answer.

If your husband does not live long enough to collect his inheritance, a probate estate can be opened for your husband and an administrator appointed (presumably you) to collect his inheritance. Either you and/or your children will be entitled to anything collected thru that inheritance, assuming there’s anything to collect.

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