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Should i file a claim or lawsuit against estate?

Helendale, CA |

lived with unmarried partner, David, for 8 years 8 months(age 53, i'm 52). he passed away very unexpectedly(without a will) about 4 weeks ago. Went to attorney, and was told that california had no common law, and that the house we lived in (bought for us 3 yrs. ago by David's father) would go to his son, even though he promised me it would be mine. After reading http://www.californiatrustestateandprobatelitigation.com/probate-court-litigation/marital-rights-without-marriage----how-nonmarital-partners-may-receive-a-share-of-a-deceased-partner/ it sounds like i do have the right to file a claim. What i want to know is
can i at the very least slow down the process. The son wants to take everything, because he can, knowing that his father wanted me to live here.

I'm going to take advice, and seek an attorney experienced in these matters. Will I be required to pay retainer fee of several thousand $$ up front, or what? I really have no idea how I would come up with, say, $5,000 all at once, immediately. I noticed there are certain rules about atty. fees in probate. I'm cautiously optimistic after viewing cases similiar to mine that have won, that with the right attorney, i have a chance of at least staying in my home. And i don't mind it costing thousands. But $20,000 - $30,000!! That's quite a bit for a small estate. Anyway, I have until Monday.

Attorney Answers 4


  1. Best answer

    I realize that you, like almost every other person that comes to this forum, didn't come here simply to be told "go get an attorney," but that's precisely what you need to do. The reality is that your situation is not going to be resolved by a quick fix, and self-help rarely ever really helps.

    Understand that some of the facts are not on your side. Specifically, verbal promises are no substitute for a valid Will. Retaining an attorney experienced in probate, the litigation of claims within probate and the quirks of real estate law that touch on equity and reimbursement is your best chance at success here. Even if, as you say, all you can do is slow things down, an attorney can do that much better than you can. You may also find that your claim is valid and enforceable. Do yourself a favor and locate an attorney that you feel comfortable with and confident in. Best of luck.

    This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make no attempt to opine on matters of law that are not relevant to Texas. 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.


  2. What you should do is immediately hire a probate lawyer to help you with this. The facts are murky and filing claims in a Probate proceeding can be extremely tricky.

    Hope this helps. If you think this post was helpful, please check the asnwer was a good answer tab below. Thanks. Mr. Geffen is licensed to practice law throughout the state of Texas with an office in Dallas. He is authorized to handle IRS matters throughout the United States and is licensed to practice in US Tax Court as well as The Court of Claims. This answer is provided as a public service and as a general response to a general question, it is not meant, and should not be relied upon as specific legal advice, nor does it create an attorney-client relationship.


  3. Cases like these are very fact specific, and you will need a probate attorney with litigation and preferably estate planning experience to advise you on the merits of your case and whether you have a cause of action (check AVVO or the local bar association for attorneys in your area). Because the attorney you already consulted with told you the house would go to your partner's son, it may be titled in joint tenancy with his son. If that is the case, it would go to him as an operation of law.

    Legal Disclaimer: James A. Littlepage is licensed to practice law in Colorado, and as such, his answers to Avvo inquiries are based on his understanding of Colorado law only. His answers are for general information about perceived legal issues within this question only and no response to any posted inquiry should be deemed to extend any right of confidentiality between you and Mr. Littlepage, to constitute legal advice, or create an attorney/client or other contractual relationship. An attorney/client relationship is formed only by specific agreement including an evaluation of the specific legal problem and review of all the facts and documents at issue. We try to insure the accuracy of this information, but we cannot guarantee its accuracy. Laws change quickly, and the reader should always insure that legal information of any kind is up to date and accurate before relying on it. The reader should never assume that this information applies to his or her specific situation or constitutes legal advice. Therefore, please consult competent counsel that practices in the subject area in your jurisdiction and who is familiar with your specific facts and all of the circumstances.


  4. I agree with other counsel that you need to consult with a lawyer who is very experienced in probate law. You do not indicate whether you and David were registered domestic partners. California law now treats the surviving domestic partner the same as a spouse for inheritence purposes. You may also have the abililty to make a Marvin vs. Marvin claim to the property. You have a very limited time period in which to make a claim against the estate, assuming it has been opened, which is why you should retain counsel immediately.

    The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

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