My legally separated husband passed away May 2008. I am listed as spouse on death cert. I naivly thought intestate succession would prevail to our two adolescent children, for which I am their sole legal and sole physical guardian. Children and I receive annuities and SSI.
Everything that my ex owned at his death: card collection, 1967 Camaro, furniture, $8,000 in account, last employment check, 1984 Ford Bronco, motorcycle, new truck, and all Personal items were stolen by his Mother less than 24 hrs after his death. She said we would work it out later for the children, and naivly I believed her.
Well, his Mother still has everything and refuses to give children anything. Can I begin the probate process now, or are there statutes of limitations. My kids are so so sad.
Estate Planning Attorney
If you were legally separated from your late husband, the court order would have severed your marital rights as his surviving spouse.
However, your two children are your late husband's legal heirs and take precedence over his mother who has no legal interest as long as your children survived their father.
If your late husband died in 2008, and he left no more than $100,000 in assets subject to probate (this does not include annuities, life insurance proceeds, etc.), you do NOT have to go through probate.
There is specific provision in the Probate Code for you to make a two-page DECLARATION UNDER PROBATE CODE SECTION 13100. This Declaration is sent to his mother and orders her to turn over to you as guardian of his heirs ALL the property that she is currently holding. If she has sold any of her son's property, she must turn over to you the proceeds of sale.
This Declaration can be prepared for you by a probate or estate planning attorney for you to sign as the guardian of your two children. You must "verify" the Declaration.
If you cannot afford an attorney but live anywhere near a California Superior Court (usually in the county "capital") there is usually an officer that can help people like you with preparing the Declaration.
If the mother does not respond, or refuses to turn over the property to you, she is in contempt of court. In that case, you will need to see a probate litigation attorney about that.
Rest assured, probate judges do not take lightly to cases like this.
There is no statute of limitation in this case. Certainly you ought to have taken action earlier but that does not excuse his mother from withholding property that belongs by law to your two children.
I hope this is helpful to you.
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This is a sad story, but unfortunately not all together uncommon. The short answer to your question as to whether there is a statute of limitations that governs when a probate can be opened, is NO. However, if a long time passes between the death and the opening of the probate, the judge is going to want to know why there such a delay.
However, I don't think that is the main issue here. As of January 1, 2012, an estate comprised of probate assets worth in excess of $150,000 is required to go through a formal, court-supervised probate. If the estate is worth less than that, an interested party can petition to administer the estate through the probate process if there are other compelling reasons to do so. In this case, although the probate court is probably the most appropriate forum in which to handle these issues, the dollar value of the assets probably makes it cost-prohibitive to open a probate for the sole purpose of sorting out the competing claims to your husband's personal and other property.
My answer to this question does not constitute the creation of an attorney-client relationship.
You need to contact a probate atty to determine what type of matter needs to be filed to collectd these assets if they were in the man's name alone on his date of death.
Legal disclaimer: This answer does not constitute legal advice. I am admitted to practice law in the State of Missouri only, and make no attempt to opine on matters of law that are not relevant to Missouri. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship. less