My dad passed without a will. Some of his accounts were held jointly with my brother. Others were owned by dad solely. Prior to his death, he instructed my brother to split the money on the joint accounts. Dad also signed some checks to the accounts he held solely. After he passed, brother took them all. Is he entitled to all and is it legal for him to do so n California?
Dad was 85 yrs. old. Mom passed away in July 2010. They've always had 2 names to their bank accounts. After mom passed, he added my brother to most of his accounts because he lived with him. Dad didn't speak or write English, so he relied on my brother to pay his bills by checks. Dad's cancer spreaded in April 2012. By January 2013, he discovered most of his money was gone. He try to recover them but couldn't since he was very sick and bedridden. He told everybody and his sisters as witnesses he wanted his assets split equally, but my brother ignored him. Dad passed away in Feb. 2013.
In california the holding of joint assets creates a rebuttable presumption that they pass to the coowner. You would have the burden of showing that holding title in that manner was for convenience only.
As to the accounts without beneficiary designation and not held as joint tenants, no, your brother has no right to take those. They would become part of your dad's estate, and pass by intestacy. If your dad was not married at death, then one half to each of you.
If your brother took all the assets yoUr would have to petition for probate and then seek to recover the assets using probate code section 850
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Estate Planning Attorney
Attorney Schultz is correct about the procedure in Probate Court to establish ownership of the non-joint accounts.
You can also raise your objections on the joint accounts in this Probate Court proceeding and bring forward evidence that these accounts were for convenience and not intended to pass only to one child.
Attorneys Shultz and Pollex are correct. Please retain an attorney who can review the facts, determine whether you have a good shot at winning, and then work with you to make a decision on whether it makes economic sense to go after your brother. That is, you and your lawyer are going to have to weigh whether the amount you are likely to receive in any litigation vs. the expenses it's going to cost you to pursue this matter. Good luck to you.
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Family Law Attorney
No, he isn't but you can file a Petition To Probate his estate and be appointed as the administrator to insure that the funds are distributed fairly. No one can take his money without a court order granting authority and distribution of the estate assets. You must file a petition to probate the estate and I highly suggest that you retain an attorney.
I agree with my colleagues that the joint accounts are not part of your father's estate. If it was not your father's intent that your brother receive these funds, then he should not have set the accounts up in this manner. The fact that he had accounts set up otherwise, makes it even tougher to argue that it was not your father's intent that the joint accounts pass to your brother. This is a case where estate planning through an attorney may have led to a completely different result. Because this was not done, you are paying the price of your father's failure to plan properly. Hopefully, your painful lesson will have an impact on someone else and they will be determined to avoid this mistake.
I am sorry for your loss and the fact you are dealing with these matters.
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