At a minimum, everyone should have at least a will. If you cannot afford an attorney or you want to create a will on your own there are do it yourself (DYI) software programs available. If you are inclined to prepare your own estate planning you can find information at https://www.sweeneyprobatelaw.com/diy-resources/.

Why is a will so important? Persons who die without wills typically see their estates subject to intestate succession. See my article at https://www.sweeneyprobatelaw.com/articles/what-happens-if-a-person-dies-without-a-will/ regarding intestate succession.

A unique situation arises when a person dies without issue or a current spouse and a predeceased spouse with children from a prior relationship. California Probate Code §6402.5 provides a mechanism for stepchildren to have priority to inherit from a stepparent through intestacy.

When a decedent had a predeceased spouse and the decedent passed away with no issue of his own and no surviving spouse at the time of his death, then under certain circumstances, the children of the predeceased spouse may have priority to inherit a portion of the decedent’s estate to which they would not otherwise have been entitled.

To demonstrate how California Probate Code §6402.5 operates, consider this example:

When Jim and Nancy, got married, Nancy had two children from a prior relationship (Carol and Willy.) Jim had no children of his own, nor did Jim formally adopt Carol and/or Willy. Jim and Nancy did not have any children during their relationship and all assets that they owned were community and titled in joint tenancy. Nancy passed away in 2010 without a will. Jim never remarried and passed away seven years later in 2017. Jim was survived only by his sister, Mary, and died without any estate plan in place. Jim and Nancy lived in California and owned a home and a sports car in California.

You might ask, who will inherit the community property home that Jim and Nancy owned in joint tenancy?

Remember, when Nancy passed away in 2010, Jim became the sole owner of their home based on his right of survivorship (i.e., when real property is owned by multiple parties in joint tenancy, the death of one owner causes the decedent’s ownership share of that property to automatically vest in the surviving owner(s), without the need to open probate).

What happens to home and sports car that Jim owned when he passed away?

According to California Probate Code §6402.5, when Jim passed away “not more than 15 years” after Nancy passed away, and still with full ownership of the house, Jim’s stepchildren—Carol and Willy—became entitled to “the portion of the decedent’s estate attributable to the decedent’s predeceased spouse.” This analysis would require a review of California’s intestate succession laws. See my article at https://www.sweeneyprobatelaw.com/articles/what-happens-if-a-person-dies-without-a-will/.

What about the sports car that Nancy and Jim purchased during their marriage?

Unfortunately, Carol and Willy are not entitled to any interest in the sports car (or for that matter any of Jim’s personal property), because Nancy and Jim died more than five years apart. California Probate Code §6402.5 applies to give step-children intestate priority in the distribution of a decedent’s personal property (including cash assets), but only when the decedent and predeceased spouse died not more than five years apart. And so here, only Mary, Jim’s sister, would inherit the vintage vehicle.

As set forth above, the exceptions found in California Probate Code §6402.5 are only applicable in narrow circumstances. Thus, if you are a step-child of a decedent, then it is important to consult with an experienced probate attorney to ensure that your rights and interests in the decedent’s estate are protected.

Again, under California Probate Code §6402.5, the predeceased spouse's issue may be entitled to the portion of real or personal property attributable to the predeceased spouse if

• The decedent died intestate;
• The decedent left no surviving spouse or issue; and
• The decedent died within 15 years (for real property) or 5 years (for personal property) of the predeceased spouse's death.

To learn whether you should retain the services of a Riverside County or San Bernardino County probate lawyer, or to gain more information on California probate procedure or requirements, or to discover which strategies are best for your situation, please contact me for a free consultation. You can reach me by phone at 760-989-4820 or through my online contact form.

Please contact me if you are involved with the death of a person with a Will or without a Will and especially of the deceased person had business interests. I handle probate matters in all California counties, including Southern California Counties, such as Imperial County, Los Angeles County, Orange County, San Bernardino County, and San Diego County. I also represent parties residing outside of California that have probate matters affecting real and/or personal property in California.