Probate: CA vs ID? [Minor child inherits grandparent's estate]

[masa2021]

Hi all. My ex-spouse passed away without a will. We have a minor child. Is this a situation that probate is required for the child to inherit his father's estate?
They are still trying to determine if my ex-spouse's primary residence was Idaho or California. If I understand correctly, that will determine which state will do the probate.
An attorney told me the probate process might be cheaper and faster in ID than CA. Is that true? I am not sure if she was referring to the attorney fee or court filing fee. What are the pros and cons of doing probate in ID vs CA?
Another question, do most people need an attorney for the probate process? Can they start the probate process with the county court without an attorney?

[Lee_WSP]

It depends a lot on the size of the estate and where real estate is located. Your child'mighthave to probate in both.

[Big Dog]

as lee said, CA depends on the size of what she left behind. CA has a Simplified procedure for most assets < $167k. But you have to read thru the "simplified" rules. (hah!)

https://www.courts.ca.gov/10440.htm

[bsteiner]

You can’t probate the Will if there’s no Will, though the procedure for an intestate administration is similar.

I’ve never had any matters in Idaho but it’s a Uniform Probate Code state which generally means simplified procedures. You might want to confirm that with Idaho counsel. On the other hand, people often say California is difficult.

You’re not the judge. If there’s a reasonable basis for the position you want you can take that position.

Don’t be scared by what people say are the costs. If your son is the administrator he won’t take an administrator’s commission (fee).

[aristotelian]

Sounds like you are already talking to an attorney. I am sure they are more knowledgeable than people on a message board, even a good one like Bogleheads. I would speak with an attorney if only to ask whether you can easily handle the case yourself.

Do you happen to know if any investment accounts had beneficiaries listed? Those should transfer directly to beneficiaries without any need for probate. Same with life insurance money. However, the children might need a guardian of property in order to inherit them.

[123]

...My ex-spouse passed away without a will. We have a minor child. Is this a situation that probate is required for the child to inherit his father's estate?...

Was he married (to someone else) at the time of his death? Did he have any other children (including step-children)? If there is a mixed family situation and no will things can get complicated with the involvement of multiple states who may have different "intestate" distribution rules.

[masa2021]

...My ex-spouse passed away without a will. We have a minor child. Is this a situation that probate is required for the child to inherit his father's estate?...

Was he married (to someone else) at the time of his death? Did he have any other children (including step-children)? If there is a mixed family situation and no will things can get complicated with the involvement of multiple states who may have different "intestate" distribution rules.

He was not married at the time of his death. No other children.

[masa2021]

Thanks everyone!

[masa2021]

[Thread merged into here, see below. --admin LadyGeek]

Hi all. My ex-husband died without a will recently. We have a minor child. My ex didn't re-marry and didn't have any other children. The unusual situation here is that my ex-husband's last parent died of covid a few month before. My ex-husband and his sister are supposed to receive equal share of the inheritance once the estate settles.

My understanding is that my ex-husband's estate is supposed to receive half of my ex-father-in-law's estate. My child is supposed to receive 100% of his father's estate.

My questions are as follows:
1) How do I ensure half of my ex-father-in-law's estate goes to my ex-husband's estate? I couldn't get the estate attorney's contact information from my ex-husband's sister. My ex-father-in-law passed away in New Jersey.
2) My ex-husband owed me back child support and spousal support. How do I go about to collect the child support and spousal support?
3) To protect my child's legal rights, should I file a petition with the probate court to administer my ex-husband's estate?

Thank you in advance for anyone who has information to share.

[denovo]

You're going to need a lawyer. (edited substantially, didn't realize ex-husband was dead)


It may helpful if you can answer the below questions in the opening post with the edit button...
Do you live in New Jersey?
Does your ex-husband have an open estate with any substantial assets?
Did your ex-husband die before or after this parent?
Did your ex's parents have a will or trust?

If you know the county that your ex-husband's father died in you can most likely find information through a public records search of that county court records. In NJ, this is done through the surrogate court, so you would need to find the record search for your county eg Morris County, NJ
https://surrogate.morriscountynj.gov/se ... d-estates/ You would need to get in touch with the executor of the estate.

If you do not have the resources your local county child support agency may provide legal services to those who are trying to obtain child support/alimony. What you would need to is secure a lien for the child support/alimony and then file it as a lien against your ex-husband's estate if applicable . Unless you are a lawyer I am not sure you will be able to do this.

[celia]

Beyond that, your ex-husband really is free to waste the remainder of his money. You can't stop him from doing so because you want to secure an inheritance for his child. He could disclaim his inheritance to his sister less any hypothetical lien, and you couldn't stop it.

I understood that the ex-husband died AFTER his last parent, but before the parent's estate was distributed. He's no longer around to take any actions.

OP, How do you know your child is a beneficiary? The surviving son (your ex-husband) could have had a will or at least changed beneficiaries on his own accounts.

Getting an estate lawyer in NJ to represent you and your child is a good idea, especially if you do not live there.

[gch]

+1 on getting a lawyer. My family had quite a bit of “fun” distributing a pretty sizable sum in a similar situation because the grandparent had specifically stated the money not go to someone under 25.

[denovo]

Beyond that, your ex-husband really is free to waste the remainder of his money. You can't stop him from doing so because you want to secure an inheritance for his child. He could disclaim his inheritance to his sister less any hypothetical lien, and you couldn't stop it.

I understood that the ex-husband died AFTER his last parent, but before the parent's estate was distributed. He's no longer around to take any actions.

OP, How do you know your child is a beneficiary? The surviving son (your ex-husband) could have had a will or at least changed beneficiaries on his own accounts.

Getting an estate lawyer in NJ to represent you and your child is a good idea, especially if you do not live there.

Oh dear, I totally goofed up and misread OP. I am going to edit my post.

[Tamarind]

OP, you need your own estate lawyer. They should be able to answer all three of your questions.

Don't go cheap and try to do it yourself.

[Gill]

OP, you need your own estate lawyer. They should be able to answer all three of your questions.

Don't go cheap and try to do it yourself.

The child is the one who needs the lawyer.
Gill

[Tamarind]

OP, you need your own estate lawyer. They should be able to answer all three of your questions.

Don't go cheap and try to do it yourself.

The child is the one who needs the lawyer.
Gill

The parent is the one who's got to go find one, though.

[bsteiner]

N.J.S.A. § 3B:10-2 sets forth the priority for letters of administration. The spouse has first priority, and then the heirs. If no one applies within 40 days, the court may grant letters to any fit person who applies. https://codes.findlaw.com/nj/title-3b-a ... -10-2.html.

You might want to check with the court as to whether it's sufficient for you to apply as your child's surviving parent, or whether they would want you to first qualify as your child's guardian.

[NotWhoYouThink]

Do you have a feel for how much is in the grandparent's estate? That may make a difference as to whether it is worth fighting for.
Estates managed by family members tend to turn into dumpster fires, and your ex SIL's refusal to provide the name of the estate lawyer is a red flag. If it's not a lot of money you might be better off staying out of it and mentally/emotionally writing it off. If you think there is the potential of a significant inheritance for your child, you can't act quickly enough. Retain a lawyer to represent your child's interest in the grandparent's estate, and have that attorney contact your SIL so that she is on notice. Money can disappear quickly when no one is watching, and can be impossible to recover. We aren't all bogleheads.

As to your ex-husband's estate, I agree that you should petition to represent the estate. If nothing else, you'll find out if anyone else has petitioned to represent it. Again, how hard you should fight any of this depends on how much money is potentially involved for you(back child support) and your child. If child support wasn't paid because your ex had more debts than assets there won't be much to recover. Would he have any employer provided life insurance? That may be worth looking into.

Good luck.

[delamer]

OP, you need your own estate lawyer. They should be able to answer all three of your questions.

Don't go cheap and try to do it yourself.

The child is the one who needs the lawyer.
Gill

But the OP is owed money from the ex for unpaid child support/alimony.

Doesn’t the OP also have a legitimate claim against the estate?

In any case, I’d have hired a lawyer yesterday especially since the ex died intestate.

[Gill]

But the OP is owed money from the ex for unpaid child support/alimony.

Doesn’t the OP also have a legitimate claim against the estate?

In any case, I’d have hired a lawyer yesterday especially since the ex died intestate.

Forgot about that. Yes, she should file a creditor's claim again the estate.
Gill

[senex]

OP, you need your own estate lawyer.

Do you have a feel for how much is in the grandparent's estate? That may make a difference as to whether it is worth fighting for.
[...]
If child support wasn't paid because your ex had more debts than assets there won't be much to recover.

OP, all these points are important, especially since you may require attorneys in 3 different states (you mention CA & ID your other thread, and NJ here).

If there is a lot of money at stake, you need to move quickly. Conversely, if your ex and his parents were broke, paying a bunch of attorneys may be an expensive wild goose chase. Good luck.

[masa2021]

Thanks everyone.

[masa2021]

Do you have a feel for how much is in the grandparent's estate? That may make a difference as to whether it is worth fighting for.
Estates managed by family members tend to turn into dumpster fires, and your ex SIL's refusal to provide the name of the estate lawyer is a red flag. If it's not a lot of money you might be better off staying out of it and mentally/emotionally writing it off. If you think there is the potential of a significant inheritance for your child, you can't act quickly enough. Retain a lawyer to represent your child's interest in the grandparent's estate, and have that attorney contact your SIL so that she is on notice. Money can disappear quickly when no one is watching, and can be impossible to recover. We aren't all bogleheads.

As to your ex-husband's estate, I agree that you should petition to represent the estate. If nothing else, you'll find out if anyone else has petitioned to represent it. Again, how hard you should fight any of this depends on how much money is potentially involved for you(back child support) and your child. If child support wasn't paid because your ex had more debts than assets there won't be much to recover. Would he have any employer provided life insurance? That may be worth looking into.

Good luck.

Thank you for offering your valuable advice.

[masa2021]

Do you have a feel for how much is in the grandparent's estate? That may make a difference as to whether it is worth fighting for.
Estates managed by family members tend to turn into dumpster fires, and your ex SIL's refusal to provide the name of the estate lawyer is a red flag. If it's not a lot of money you might be better off staying out of it and mentally/emotionally writing it off. If you think there is the potential of a significant inheritance for your child, you can't act quickly enough. Retain a lawyer to represent your child's interest in the grandparent's estate, and have that attorney contact your SIL so that she is on notice. Money can disappear quickly when no one is watching, and can be impossible to recover. We aren't all bogleheads.

As to your ex-husband's estate, I agree that you should petition to represent the estate. If nothing else, you'll find out if anyone else has petitioned to represent it. Again, how hard you should fight any of this depends on how much money is potentially involved for you(back child support) and your child. If child support wasn't paid because your ex had more debts than assets there won't be much to recover. Would he have any employer provided life insurance? That may be worth looking into.

Good luck.

My sister-in-law finally gave me the name of the law firm that represents their father's estate. I will try to contact them soon. I asked her if I could have a copy of the will. She said no.

[bsteiner]

My sister-in-law finally gave me the name of the law firm that represents their father's estate. I will try to contact them soon. I asked her if I could have a copy of the will. She said no.

Both are public records. You can get a copy of the Will from the court. You can also get copies of the probate papers (which will show the name of the executor’s lawyer) from the court.

However, if your sister-in-law will give you her lawyer’s contact information, her lawyer will likely give you a copy of the Will.

[masa2021]

[Thread merged into here, see below (next page) --admin LadyGeek]

Hi all. My ex-husband passed away. There will be funds in his estate. He owed me back child support and alimony. He might have credit card debts and other debts.

If multiple creditors try to collect from his estate, who gets priority? Is the estate supposed to pay back child support before credit card debts?

[8foot7]

Depends on the state but generally child support takes priority over most everything.

[masa2021]

My sister-in-law finally gave me the name of the law firm that represents their father's estate. I will try to contact them soon. I asked her if I could have a copy of the will. She said no.

Both are public records. You can get a copy of the Will from the court. You can also get copies of the probate papers (which will show the name of the executor’s lawyer) from the court.

However, if your sister-in-law will give you her lawyer’s contact information, her lawyer will likely give you a copy of the Will.

Thank you. I didn't know it's public records.

[Bobby206]

OP, you need your own estate lawyer. They should be able to answer all three of your questions.

Don't go cheap and try to do it yourself.

The child is the one who needs the lawyer.
Gill

Parent probably needs to file for a guardianship of the estate and likely with the aid of a probate attorney. At least in Cali that's what would be done. At least in Cali the child wouldn't have a lawyer in most cases.

[Lee_WSP]

Secured creditors, then unsecured creditors by state priority.

[Minority Opinion]

Don't forget to file for SS survivor benefits if you have not already done so.

[Spirit Rider]

Depends on the state but generally child support takes priority over most everything.

You are correct that this is very much state dependent. Spousal/child support and alimony are not even mentioned in my state probate statutes or probate court rules.

Priority of charges:

1. Estate administration
2. Funeral, burial and/or cremation
3. Federal debts and taxes
4. State debts and taxes
5. Debts of the decedent
6. legacies and/or heirs

Note:

1. No priority within class
2. No payments to lower class until all payments of each class made

In my state, child support would stand in line with all other unsecured creditors and would be paid a pro rata share if insufficient assets.

[LadyGeek]

masa2021 - In order to provide appropriate advice, it's best to keep all the information in one spot. I merged your updates back into the original thread.

If you have any questions, ask them here.

[masa2021]

masa2021 - In order to provide appropriate advice, it's best to keep all the information in one spot. I merged your updates back into the original thread.

If you have any questions, ask them here.

Thanks.

[masa2021]

[Thread merged into here, see below --admin LadyGeek]

Hi all. The divorce decree my ex-husband agreed to states that he had to carry a life insurance with our kid as the sole beneficiary during the term of child support obligation period. He never remarried and had no other children. He passed away recently. He had a life insurance policy from his employer. He didn't name our child as the beneficiary. Our child is still a minor.

My questions are as follows:
1)Should I contact a family law attorney or estate attorney? One attorney said he was not sure if he can help because he wasn't sure if it's a family court issue
2)In which state should I find an attorney? I am in California. My ex-husband passed away in Idaho.
3)How can I move quickly on this situation? They said it would only take the insurance company a couple of weeks to release the funds to the beneficiary once they receive the death certificate. I worry the life insurance payout might be spent before an attorney can help me.

Thank you in advance.

[Lee_WSP]

The failure to add the child is a family court matter.

The potential debt due to the failure is a probate matter. But first, the debt must be adjudicated or at least alleged. I only have the vaguest notion of how that shakes out.

If it wasn't his child, then who was listed as the beneficiary?

[masa2021]

The failure to add the child is a family court matter.

The potential debt due to the failure is a probate matter. But first, the debt must be adjudicated or at least alleged. I only have the vaguest notion of how that shakes out.

If it wasn't his child, then who was listed as the beneficiary?

Thank you. The beneficiary could be his sister or his ex-girl friend.

[123]

...3)How can I move quickly on this situation? They said it would only take the insurance company a couple of weeks to release the fund to the beneficiary once they receive the death certificate. I worry the life insurance payout might be spent before an attorney can help me...

You should immediately notify the insurance company in writing that you wish to file a claim for the policy proceeds in accordance with a court order. You should include the name of the deceased, the deceased data of birth, date of death, place of death, and policy number. If you have a policy number that would be very helpful to them. If you have a copy of the court judgement you should include that with your letter. Though they likely might eventually require a certified copy of the judgement a non-certified copy is better than nothing.

Claims for life insurance proceeds are normally very simple. The insurance company may never have been served with a copy of the court order so it is important to notify them that such an order exists. The insurance company's legal department will likely become involved to evaluate the court order.

If you delay and the proceeds are correctly and properly paid out to someone else because the insurance company was unaware of the court order it would be very difficult to receive the proceeds.

[Super Hans]

...3)How can I move quickly on this situation? They said it would only take the insurance company a couple of weeks to release the fund to the beneficiary once they receive the death certificate. I worry the life insurance payout might be spent before an attorney can help me...

You should immediately notify the insurance company in writing that you wish to file a claim for the policy proceeds in accordance with a court order. You should include the name of the deceased, the deceased data of birth, date of death, place of death, and policy number. If you have a policy number that would be very helpful to them

Claims for life insurance proceeds are normally very simple. The insurance company may never have been served with a copy of the court order so it is important to notify them that such an order exists. The insurance company's legal department will likely become involved to evaluate the court order.

If you delay and the proceeds are correctly and properly paid out to someone else because the insurance company was unaware of the court order it would be very difficult to receive the proceeds.

+1. This presumably would push the matter into interpleader. The carrier essentially would sue you and the named beneficiary, then get dismissed from the case, and the court would decide who the beneficiary should be. This could be better than just going after the estate for the breach (though you should do that, too, including to try to get back the interpleader costs), because there may not be sufficient estate assets.

[masa2021]

...3)How can I move quickly on this situation? They said it would only take the insurance company a couple of weeks to release the fund to the beneficiary once they receive the death certificate. I worry the life insurance payout might be spent before an attorney can help me...

You should immediately notify the insurance company in writing that you wish to file a claim for the policy proceeds in accordance with a court order. You should include the name of the deceased, the deceased data of birth, date of death, place of death, and policy number. If you have a policy number that would be very helpful to them

Claims for life insurance proceeds are normally very simple. The insurance company may never have been served with a copy of the court order so it is important to notify them that such an order exists. The insurance company's legal department will likely become involved to evaluate the court order.

If you delay and the proceeds are correctly and properly paid out to someone else because the insurance company was unaware of the court order it would be very difficult to receive the proceeds.

Thank you. I will follow your advice and send them a letter.
I called the insurance company. They said they don't have the employer or my ex-husband's information in their system. I called the HR at the employer. HR said the insurance company is only in charge of paying and wouldn't have other information.

[Dottie57]

...3)How can I move quickly on this situation? They said it would only take the insurance company a couple of weeks to release the fund to the beneficiary once they receive the death certificate. I worry the life insurance payout might be spent before an attorney can help me...

You should immediately notify the insurance company in writing that you wish to file a claim for the policy proceeds in accordance with a court order. You should include the name of the deceased, the deceased data of birth, date of death, place of death, and policy number. If you have a policy number that would be very helpful to them

Claims for life insurance proceeds are normally very simple. The insurance company may never have been served with a copy of the court order so it is important to notify them that such an order exists. The insurance company's legal department will likely become involved to evaluate the court order.

If you delay and the proceeds are correctly and properly paid out to someone else because the insurance company was unaware of the court order it would be very difficult to receive the proceeds.

Thank you. I will follow your advice and send them a letter.
I called the insurance company. They said they don't have the employer or my ex-husband's information in their system. I called the HR at the employer. HR said the insurance company is only in charge of paying and wouldn't have other information.
The employer is a big company. they are about 100th on the fortune 500 list.
Their HR gave me the paralegal of their company to contact. I sent the paralegal an email and I am waiting for a reply.

Get it on paper and send via mail. Maybe send it certified.

[8foot7]

While it may be true that your ex-husband was in violation of a decree to carry insurance fbo your child, it seems like a potentially expensive task to try to redirect the proceeds of another policy with a valid beneficiary designation in place. One would assume the current policy beneficiary, the one of whom you are attempting to deprive the funds, would put up at least a bit of a fight.

EDITED to add that if this is an employer-provided plan, it likely falls under ERISA regulations which mean you have a pretty good shot here. Learn something new every day, ha.

[123]

...I called the insurance company. They said they don't have the employer or my ex-husband's information in their system. I called the HR at the employer. HR said the insurance company is only in charge of paying and wouldn't have other information.
The employer is a big company. they are about 100th on the fortune 500 list.
Their HR gave me the paralegal of their company to contact. I sent the paralegal an email and I am waiting for a reply.

If this insurance was provided through the employer I would send a copy of everything to the employer's HR department as well. In cases of group benefits the employer is often the "gatekeeper" so its important to establish a bottleneck there as well,

[fyre4ce]

I would notify the insurance company in writing right away about the issue. Beyond that, I think you need an attorney. While BH has smart and well-informed (and sometimes law-knowledgeable) members, I wouldn’t trust what I read on the internet.

[galawdawg]

Hi all. The divorce decree my ex-husband agreed to states that he had to carry a life insurance with our kid as the sole beneficiary during the term of child support obligation period. He never remarried and had no other children. He passed away recently. He had a life insurance from his employer. He didn't name our child as the beneficiary. Our child is still a minor.

My questions are as follows:
1)Should I contact a family law attorney or estate attorney? One attorney said he was not sure if he can help because he wasn't sure if it's a family court issue
2)In which state should I find an attorney? I am in California. My ex-husband passed away in Idaho.
3)How can I move quickly on this situation? They said it would only take the insurance company a couple of weeks to release the fund to the beneficiary once they receive the death certificate. I worry the life insurance payout might be spent before an attorney can help me.

Thank you in advance.

Sorry for the difficulty on this situation.

1. Did the divorce decree say that his employer-provided policy must name your child as beneficiary or did it simply require him to carry a life policy naming your child as the beneficiary?
2. If the decree did not specify that the employer-provided policy would name your child as beneficiary, did you and/or your attorney require your husband to provide evidence of compliance following the divorce and periodically thereafter?
3. Do you even know whether he had another life insurance policy naming your child as beneficiary?

Life insurance beneficiary contests are challenging legal matters involving complex issues of law and you will NOT be able to handle it on your own. You may or may not have a viable legal position. You may also need to pursue a claim against the estate, assuming that there are assets in the estate. In any event, your first step should be to consult with an attorney. If you have a good relationship with the person who will administer his estate (executor or administrator), you may be able to gently inquire about the existence of another policy that may have named your child as beneficiary.

For the benefit of others who will read this thread in the future, it is always the best course of action to require ongoing evidence of compliance of divorce conditions involving future provisions for a minor child, such as life insurance, health insurance and prepaid college tuition or other such investments. The requirement for ongoing evidence of compliance should be appropriately written into the decree so that it is enforceable.

Of course, IANYL. Hope it works out.

[masa2021]

Sorry for the difficulty on this situation.

1. Did the divorce decree say that his employer-provided policy must name your child as beneficiary or did it simply require him to carry a life policy naming your child as the beneficiary?
2. If the decree did not specify that the employer-provided policy would name your child as beneficiary, did you and/or your attorney require your husband to provide evidence of compliance following the divorce and periodically thereafter?
3. Do you even know whether he had another life insurance policy naming your child as beneficiary?

Life insurance beneficiary contests are challenging legal matters involving complex issues of law and you will NOT be able to handle it on your own. You may or may not have a viable legal position. You may also need to pursue a claim against the estate, assuming that there are assets in the estate. In any event, your first step should be to consult with an attorney. If you have a good relationship with the person who will administer his estate (executor or administrator), you may be able to gently inquire about the existence of another policy that may have named your child as beneficiary.

For the benefit of others who will read this thread in the future, it is always the best course of action to require ongoing evidence of compliance of divorce conditions involving future provisions for a minor child, such as life insurance, health insurance and prepaid college tuition or other such investments. The requirement for ongoing evidence of compliance should be appropriately written into the decree so that it is enforceable.

Of course, IANYL. Hope it works out.

Thank you.

The divorce decree simply requried him to carry a policy and naming the child as sole beneficiary
attorney didn't ask him to provide evidence of compliance.
he didn't have other insurance plan.

[masa2021]

Hi all. op here. I tried to get an attorney. Some of them said I need to find out how much the life insurance policy is worth before they can consider taking my case. The problem here is that the employer HR wouldn't give me any information on the insurance policy.

[donall]

Typically companies carry life insurance policies of 100% to 150% of annual pay. If this is a large corporation, then you can often look up benefits online in blogs or job listings and get an idea of the amount of insurance. If ex-husband was in management, then the policy may be for a higher percentage.

Would the child have other inheritance rights?

[masa2021]

Thank you all. OP here again. I called many family law attorneys and estate attorneys. I haven't found anyone can help.

The reasons are as follows
1) it is a somewhat unique situation. they told me they don't work with this type of issue.
2) my ex-husband's primary residence at death was Idaho. I am in california. Some attorneys said I should hire an attorney in Idaho. Some think it doesn't matter.

I will keep calling. Any suggestions on finding an appropriate attorney for my situation? Which type of attorneys should I call?

[mw1739]

Same situation happened to my old neighbor, who was the new wife in this situation. The ex was ultimately able to get the life insurance proceeds for the kids. I believe it all played out in probate court.