Where there's no will, there's a way

By McNichol & Tillem

Dear Len & Rosie, My mother-in-law passed away recently and we were shocked to find out that she did not have a will or any sort of estate planning done. My husband is her oldest child, and at one time had power of attorney for her, but it was so long ago that he can’t find the paperwork and he doesn’t know if it was durable or temporary.

His mother had a domestic partnership with the man she’d been living with for the last 12 years, but he seems to want my husband to take care of the details of the estate and assumes that other than the house they owned together, she would have wanted everything split between her two children.

We can’t find information on how to take the elementary step of asking the court for my husband to be appointed the personal representative of his mother’s estate. Can you tell us what to do?

 April

Dear April, Your husband should obtain copies of all of his mother’s account information, including life insurance policies, the deed to her home, and the title and registration papers to her car, if she owned one. The basic idea is that to complete the administration of his mother’s estate, he has to start at the beginning, and the beginning is determining exactly what his mother owned, and how she owned it.

Anything your mother held in joint tenancy with her husband belongs to him. If the home is in joint tenancy, he’ll need to sign and record an affidavit of death of joint tenant to remove your mother-in-law from the title to the home. The home should also be appraised to determine its new cost basis for capital gains tax purposes.

If your mother-in-law and her partner were registered as domestic partners with the California Secretary of State, then they will be treated as spouses for all probate purposes in California. This may provide the survivor with the added benefit of avoiding a property tax reassessment on the home. However, if they registered as domestic partners with a city or county, as some local governments provide, then the survivor won’t get any benefit from California’s domestic partnership law.

After any joint tenancy and pay-on-death assets are distributed, all that’s left, titled solely in your mother-in-law’s name, is subject to probate administration. If the estate is worth more than $100,000, it will be necessary to file for probate in superior court. If the estate is worth less than $100,000, the beneficiaries can collect the assets using small estate declarations under California Probate Code section 13101.

Automobiles may be transferred 40 days or more after the date of death using DMV Form REG-5.

The surviving domestic partner (if registered with the state) inherits all of the community property, if any, and either one-third of the separate property (if she had two or more children) or one-half of the separate property (if your husband is her only child).

You shouldn’t try to prepare deeds or affidavits on your own. It’s best that your husband collect all of his mother’s asset information and then consult an attorney. After a review, he can then decide whether or not he should try to do it himself.

Len & Rosie

Tillem and McNichol are elder law attorney in Sonoma.

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