Sacramento, CA asked in Contracts, Estate Planning, Real Estate Law and Tax Law for California

Q: My father died with out a will in CA> The house was in my brothers name. Do the other siblings have any control

Father stated before his death that he wanted his youngest daughter to live in his house because the other siblings were out of the state and already well established, Home owners , with good jobs. Literally on his death bed he told everyone that he wanted his youngest daughter to live in his house. Now the son is kicking his sister out and selling the house. Does she have any legal way to block the sale, Can the son keep all the proceeds from the sale and give his sister nothing and finally a death bed declaration means nothing in CA.

2 Lawyer Answers
D. Mathew Blackburn
D. Mathew Blackburn
Answered
  • Tax Law Lawyer
  • Englewood, CO

A: Estate planning is important. The documents control the disposition of the property unless there are specific circumstances that require a different treatment. You should consult a California Probate attorney to see if any of the exemptions apply.

Best of luck.

Tim Akpinar agrees with this answer

Nina Whitehurst
Nina Whitehurst
PREMIUM
Answered
  • Estate Planning Lawyer
  • Crossville, TN
  • Licensed in California

A: I am very sorry for your loss and to hear that your family is going through this. I am especially sorry to hear that your father failed to engage in any kind of estate planning. As far as I know, there is no state in the Union that allows oral wills to transfer real property. The few states that do allow oral wills only allow them for property of very low value, e.g. up to $1,000. California does not allow oral wills at all. They were repealed decades ago. So, even if the house had been in your dad's name, his oral will would have been invalid.

The house being in your brother's name is also a giant impediment to honoring what you believe to be your father's wishes. The presumption would be that he meant to give it to your brother. In theory you could hire an attorney to bring a quiet title action against your brother and attempt to prove that your father only intended to give it to your brother to hold it in some kind of trust or fiduciary capacity but you would need some really, really, really solid evidence of that to overcome the gift presumption. And if by any chance your brother actually paid your dad for the house, forget it.

If what you say is true, you are at your brother's mercy to "do the right thing". If there's one thing I have learned after so many years of doing this kind of work, it's that you don't know a person's true character until they have to choose between a lot of money and doing the right thing.

Tim Akpinar agrees with this answer

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