Q: California, Heir has died during probate, he had wife and four kids. Can we give kids the money and not wife? She has
virtually ignored him during his home care phase? The will states if the heir predeceases her the money goes to his kids and not the spouse. Since he died after her can we honor the intent of the will?
A: Did the heir die within 30 days of the decedent? The will speaks at the death of the decedent, and if the heir survived by 30 days, then the inheritance due to the heir would have to go to the heir's estate. Now you have two probate cases to deal with. You will have to determine whether the heir's estate must go through a probate action, and who the heirs are of the heir to the decedent. The decedent's will does not determine who the heirs of the heir are. If the heir did not have a will, then the heir's spouse has either a 1/3 or 1/2 interest in the heir's inheritance.
A: The starting point is what the will of the first decedent says about this situation. If it is covered then that is your answer. For example, many wills have a 45-day or even longer survivorship period.
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