My father recently died in california and in his will he left 1/3
equal shares of his mobile and the contents of said home to his 2
children (me and my sibling) and his last ex-wife. The will also
states that the "rest and residue of his estate" goes in equal shares
to the two children. Prior to his death, he set up with one bank to
allow me and the ex-wife to write checks to handle payment of his
bills n the event that the progression of the illness which killed him
interfered with his capability to handle financial affairs.
Fortunately he never reached this state befroer dying.
Do california joint tenancy laws allow the ex-wife (who is not listed
in the will as an executor)to withdraw funds from that bank account
after his death without presenting a death certificate to the
institution and not for the purpose of paying bills related to the
estate? Do those same same laws automatically grant equal joint
ownership to that bank account? Do the california joint tenancy laws
supercede the provisions of a legal last will and testament that
specifically does not grant the ex-wife any beneficiary rights to
items other than the mobile home and its contents?

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Request for Question Clarification by websearcher-ga on 24 Apr 2005 21:25 PDT

Hello cameraman0251:

Thanks for the question. Please keep in mind that Google Answer
Researchers do *not* dispense legal advice and we are *not* lawyers.
We simply look for information that is freely available from a number
of sources.

I've done some searching for you and I've found some interesting
information - but I have a couple of questions to ask you before I
proceed.

1. The woman you refer to as your father's "last ex-wife"....You mean
that this woman and your father were divorced at the time of your
father's passing?

2. Were your father and this woman living together (in the mobile
home) prior to the time of his passing?

3. Did your father set up an official "joint tenancy" in addition to
having a will? If so, with whom and for what property? See
http://www.mobar.org/pamphlet/joint.htm for information on joint
tenancy.

Thanks. 

websearcher

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Clarification of Question by cameraman0251-ga on 25 Apr 2005 21:21 PDT

In response to your need for clarification:

1) Yes they were divorced at the time of his passing.
2) No they were not co-habitating at the time of his passing. They
both maintained seperate residences.
3) There was no official joint tenancy papers established for any
property. The issue seems to be that she thinks because her name was
listed on the account in te state of California with an "or" along
with me that she could take 1/2 of the account balance and still claim
1/3 of the value of the mobile home when the will only provided for
1/3 the value of the mobile home and stated everything else go to me
and my sister.

Hello cameraman0251:

Thank you for the clarifications. 

[I need to remind you again that Google Answer Researchers are not
lawyers and don't give professional legal advice. What I've listed for
you here is a combination of research, logic, and (I hope) common
sense.]

Since they were not married at the time of his death, I don't believe
your late father's ex-wife has legal claim to anything more than 1/3
of the mobile home - as laid out in your father's will.

I have had a good look through the "CALIFORNIA PROBATE CODE", which
governs these types of issues:

CALIFORNIA PROBATE CODE
URL: http://www.megalaw.com/ca/cacodesearch.php?codesection=prob&thecode=prob&codebody=&hits=20

There are some very relevant sections in here that I believe speak
directly to your situation. These section are under Division 5
"NONPROBATE TRANSFERS" and Part 2 "MULTIPLE-PARTY ACCOUNTS".

Given that both you and the ex-wife could draw checks on your father's
account, we should treat this account as a "joint account" in the eyes
of the Code. The first thing we'll look at is who has the rights to
the money left in this account on your father's death.

********************
Section 5302: (a) Sums remaining on deposit at the death of a party to a joint
account belong to the surviving party or parties as against the
estate of the decedent unless there is clear and convincing evidence
of a different intent.  If there are two or more surviving parties,
their respective ownerships during lifetime are in proportion to
their previous ownership interests under Section 5301 augmented by an
equal share for each survivor of any interest the decedent may have
owned in the account immediately before the decedent's death; and the
right of survivorship continues between the surviving parties.
********************

In your case, there was clear and convincing evidence of a different
intent - namely your father's will stating that this asset be split
between you and your sibling.

Section 5301 deals with who contributed to the account before the death.

********************
Section 5301:  (a) An account belongs, during the lifetime of all parties,
to the parties in proportion to the net contributions by each to the
sums on deposit,  unless there is clear and convincing evidence of a
different intent...
********************

From what you've told me, *all* the money in the account was
contributed by your late father - correct? If so, then the ex-wife has
*no* legal right to *any* of the funds after his death. If she (in
net) contributed into the account before his death, then she is
entitled to that portion of the remains of the account.

Now, as for whether she did something "wrong" if she wrote cheques on
the account after your father's death, I think she did. What can you
do about it?

Let's start with the bank where the account is. Fortunately for the
bank, they are protected from having to deal proactively with this
issue:

******************
Section 5402: Any sums in a joint account may be paid, on request and
according to its terms, to any party without regard to whether any
other party is incapacitated or deceased at the time the payment is
demanded; but payment may not be made to the personal representative
or heirs of a deceased party unless proof of death  is presented to
the financial institution showing that the decedent was the last
surviving party or unless there is no right of survivorship under
Section 5302.

Section 5401: (c) A financial institution is not required to do any of the
following:
   (1) Inquire as to the source  of funds received for deposit to a
multiple-party account, or inquire as to the proposed application of
any sum withdrawn from an account, for purposes of establishing net
contributions.
   (2) Determine any party's net contribution.
   (3) Limit withdrawals or any other use of an account based on the
net contribution of any party, whether or not the financial
institution has actual knowledge of each party's contribution.
*******************

What does all that mean? It means that the bank is free to cash
cheques on the account regardless of whether the person writing them
is legally entitled to the money or not (even if they *know* that
person isn't entitled!). It's up to the heirs/executors to sort out
any messes.

Since your father did not set up any official joint tenancies then I
don't think the law/rules for joint tenancy have any bearing on this
situation.

My personal (i.e., non-profession, non-lawyer) advice to you:

1. Get the executor of your father's estate to go to the bank with the
death certificate and get them to *shut down* any further cheques
written by anyone but the executor.

2. If any "ill-gotten" moneys taken from the account by the ex-wife
after your father's death are less in total than her 1/3 share in the
mobile home (once you figure out what that share is), get the executor
to deduct those moneys taken from the account from her share of the
proceeds on the mobile home.

3. If any moneys taken from the account by the ex-wife after your
father's death are considerably greater than her 1/3 share in the
mobile home (once you figure out what that share is), then get
yourself (or get the estate) a lawyer. I think you can get the
difference back. BUT if the difference is not enough to cover the
legal fees in getting it back - let it go. :-)

I truly hope you can iron this out to your satisfaction without
spending a fortune on lawyers.

Search Strategy (on Google):
* "probate law" california
* "joint account" site:state.ca.us
* "POD" payees
* probate laws california
* Probate site:state.ca.us 
* Joint Tenancy

I hope this helps! Good luck.

websearcher

Thank you very much for your answer and additional references. I
believe it will prove to be quite beneficial.