My father passed away and the will states that "all property, money and assests" go to me. He did not want my brother to have anything. My attorney states that because the wording is not specific and does not state the address to house and or "real property" that my brother who is listed as a descendant under the"residual" portion of the will is subject to interest in the house.The deed has myself and my dad listed as 50/50 leaving my brother 25 % interest.1) Does this sound right? 2) Also, if my brother signs a disclaimer of interest (which he has agreed to), will this still result in probate? 3) My brother owes child support, will they check into this inadvertant inheritance? I hate to second guess my attorney but other people are making me question his actions.
I am so sorry for your loss.
Without a full consultation, we can only provide general information regarding the state of the law.
In California, if your father's estate had assets over $150,000, the will must be probated in court. A disclaimer does not get you out of probate, what matters is the size of the estate. Part of the probate process is to determine the heirs of the estate, so the wording of the will gets reviewed by the parties and by the probate judge, for a determination regarding who gets what, including what happens to the house.
A disclaimer, once signed, would be filed in court in the probate proceeding, but it may or may not result in getting the property passed to you. You need to be very careful about using a disclaimer because it may have unintended consequences. For example, if the will says that your brother's share goes to his children in case of his death, then under the will you would not be entitled to receive the disclaimed portion - your brother's children would. There are also certain tax and timing issues related to a disclaimer. You should make sure your attorney is experienced in this area before your brother signs anything, and you should make sure you receive advice about this issue PROMPTLY to make sure you don't miss any of the time constraints related to qualified disclaimers to avoid unintended gift tax issues.
For the child support issue, you should have your brother confer with a family law attorney, but in general once the property passes to him, it is subject to all of his debts and creditors. If he disclaims it, then he never received the property so it should not be subject to his creditors.
Finally, you should not construe this answer to be specific legal advice relating to your situation, and you should not take any legal action based on this answer. These important issues should only be decided after a full consultation with a qualified estate planning and probate attorney who can address the specifics of your situation and provide advice tailored to your needs.
I am not licensed in California. Also, its unfair that you are asking other attorneys to second guess your attorney when they have not reviewed all of the documents. Further, from whom are you getting advice? If they are not lawyers, then they are in no position to offer legal advice as to whether what your probate attorney is doing is correct or not. If you have concrens, then discuss with your probate attorney. If you have serious concerns, then take the will to another Calfornia probate attorney and pay the attorney to review the will and advise you.
If your father wished to disinherit your brother, then he should have stated that. If he did not, then your brother may be included in the distribution. Without reviewing the precise language in the entire will, I cannot say.
If the deed to the home was in your father's name and you, did you own the land as tenants in common or did you have a joint tenancy with right of survivorship? From your post, it sounnds like the former In such case, only your father's 50% of the land passe through probate. If the will did not specifically indicate the address or some other means of identifying the piece of property, then the lawyer might be correct that your brother would get a piece of the house. Since only 50% passed through probate, then he would get at most 25% (assuming you and your brother ar3e the only beneficiaries).
Disclaimers must meet federal and state requirements to be effective. They miust be filed within 6-9 months of death. Disclaimers have nothing to do with probate of the estate and just because a disclaimer is filed does not mean that you can dispense with probate. If your brother truly wants nothing to do with the estate then have your probate attorney prepare a disclaimer for your brother.
There is no right of a child to inherit from a parent and your father could have completely disinherited your brother. Since he did not do that, I am not clear if your brother can now disclaim any interest so as to defeat his child support issues. If they find out that your brother inhyerited anything, that inheritance may be treated as income under the child support guidelines.
Since I am not a California-licensed attorney, my advice would be for your brother to check with his family law attorney as to whether he can disclaimand whether any inheritance wil be factored into his child support obligation.
Get free answers from experienced attorneys.
24,185 answers this week
2,447 attorneys answering
Get answers from top-rated lawyers.
24,185 answers this week
2,447 attorneys answering
Don't speak legalese? We define thousands of terms in plain English.Browse our legal dictionary