Skip to main content

My mother just died. My step father is living in their house. Do I ave a claim through probate even though there was no will?

San Diego, CA |

There's no will, my dad has a step child, and my mom died this month. Can I secure my rights to the property for when he dies so I have a claim and it all doesn't go to my step sister and leaves me with nothing? If so , how long do I have to act?

+ Read More

Attorney answers 4


You need to see a local attorney who practices in estate and trust law. Much of this might depend on how title was held for the real and personal property of your mother.

This is a general answer only and you should seek the advice of counsel to address facts specific to your circumstances.


Does "their house" mean it was titled jointly?
Your answer totally depends on how the assets are titled-
So-you need to have attorney review the situation.

The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.


I am sorry for your loss. I am assuming that your stepsister was not by your father. Is that correct? Since your mother died without a will, you would be entitled to your intestate share of the estate. Under Probate Code Sec. 6401, where a decedent dies with a spouse and with one child, that child is entitled to one half of the decedent’s separate property. The surviving spouse would be entitled to the other half of the separate property plus the decedent’s share of the community property.

Attorneys Pippen and Hachard are correct. How title to the property was held, and whether the property is separate or community, are important factors in determining your rights here. You are wise to want to take care of this now rather than wait until your stepfather passes away. Depending on the property status and your entitlement to an intestate share of the home, it’s possible that you may need to file a Probate Petition, if your stepfather. is unwilling to formalize an agreement.

I am located in San Diego would be happy to discuss this with you.

Disclaimer: The above answer does not create an attorney/client relationship. My responses are intended to provide general information about the question posted. I am licensed to practice in the state of California. The information provided on this site should not be used as a substitute for conferring with or hiring a competent legal advice from a licensed attorney that practices in the subject area in your state.


As the other attorneys have noted, the answer to your question will likely depend in part on the title to the assets. A probate may be necessary at this point for your mothers separate property and share of community property.

THESE COMMENTS ARE NOT LEGAL ADVICE. They are provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction. The answer to question does not create an attorney-client relationship or otherwise require further consultation. Mrs. Cook is licensed to practice law throughout the state of California with offices in San Diego County. She is authorized to handle IRS matters throughout the United States, and is also licensed to practice before the United States Tax Court. IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, please be advised that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used or relied upon, and cannot be used or relied upon, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.