What Did My Stepmother Do with Dad’s Estate?

One of our Oakland clients, “Dan”, stopped by our office to get information to help his family solve a puzzle. He and his two sisters had been raised by their father, who had stepped up when their mom died and been an extraordinary parent. The four of them had been very close, with wonderful memories of camping, hiking, walks around Lake Merritt and Saturday matinees at the Grand Lake.

Dad had raised his kids and put them through college. Then he fell in love and got married

In 2010, after all the kids had graduated from college and were on their own, their dad met “Elizabeth”, fell madly in love, and got married. From the beginning, the family had a strained relationship with Elizabeth, and they saw less and less of their father. “Dad died in 2016, and Elizabeth won’t talk to us; we don’t know if he had any kind of estate plan, Will or Living Trust. We called all the courthouses where we thought a Will might be filed, but found nothing. We don’t know if there was a Probate proceeding. What might have happened to our father’s estate? Where should we look? What can we do to find an answer?”

Here are some possible scenarios

• If their father had had a Will, it would have needed to go through Probate, in which case Dan and his sisters would have been notified under a court order.
• If there were neither a Will nor Living Trust, their father’s estate would have needed to go through Probate as well, and the siblings would have been contacted. Probate is only necessary if the property was in the name of the decedent—their dad.
• There would be no Probate if the father’s possessions were all titled “joint with rights of survivorship” with Elizabeth. Upon his death, she would automatically become the sole owner of their entire joint estate.
• If the father titled his property to a Living Trust, there would be no Probate. The Trust would own the property and the Trustee named in it, likely Elizabeth, would be responsible for managing the Trust. If Elizabeth is not particularly honest, she could ignore the Trust’s provisions—which well might include distributions for Dan and his sisters—and the siblings would never know if their father had actually identified assets for his children.

One final option: Opening their own Probate proceeding

The family can hire an attorney to open a Probate or other court matter if they cannot communicate with Elizabeth and if they have reason to believe their father had property titled in his name alone.

A Living Trust ensures that your family will avoid the dilemma that Dan and his sisters are now confronting. Our comprehensive Living Trust package includes a Power of Attorney and Advance Healthcare Directive. Contact us at one of our three Bay Area offices to schedule an appointment to create or update your Trust. We’re helpful, compassionate and affordable.