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CandidyRae

Simultaneous Death

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I am the executor of my sister's estate, both she and her husband died in a house fire earlier this year.

 

While their death certificates have different times of death (my sister was later found in their home while her husband was transported to a hospital where he was later pronounced deceased), I recently obtained the coroner's reports for both my sister and her husband and the coroner made the note that it was difficult to tell who succumbed first. When I took the coroner's report as well as the incident report from the firefighters (where it was noted my brother-in-law was unresponsive when found) to my attorney, he said simultaneous deaths are difficult to prove because a judge is unlikely to go against a doctor and quit on the spot. It's my understanding that simultaneous death would change how both estates are administered (mainly the fire insurance proceeds).

 

Is this something I can bring to the attention of a judge without an attorney (while I search for an attorney)? If so, what can I do on my own?

 

Thank you.

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I'm not really sure what you're asking.  As phrased, your questions both ask whether you have certain abilities, and we have no possible way of knowing what abilities you have.

 

You mentioned "my attorney," but then wrote that you are "search[ing] for anyattorney," so I'm not quite sure what your status is as far as having legal representation.

 

I'll also ask the question that I ask of everyone who posts that he/she is an executor:  Have you actually been appointed by the probate court to serve as executor?  I ask because a lot of folks assume that being nominated in a will makes them executor, but that's not correct.  You're not actually the executor until the court appoints you.

 

While we're asking questions:

 

Did your sister have a will?  Did her husband have a will?  If either or both of them had wills, did either will say anything about simultaneous deaths?

 

Did your sister and husband have kids?  If so, are they minors or adults?  If not, what do their wills say about who receives their net estates?

 

Are you friendly or adversarial with the husband's family?

 

Is there any urgency that would require or make it advantageous that you take some action before you can retain an attorney?

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Thank you for taking the time to respond. 

 

I was named executor in my sister’s will, and was appointed by the court as her executor at the first court hearing a few weeks after they died. 

 

Her husband died without a will. 

 

Things were amicable with his estate until the checks from the home owner’s insurance policies arrived. One check was for the replacement of the home and to pay off the mortgage. The other check covered the contents of the home. His heirs believe they are entitled to both checks, even though the home was gifted in her will. 

 

They both have children from previous marriages: her children range in age from 14-19, while his are all adults. In her will, her half of the home was to go to her children, unless her husband outlived her, with her 1/2 reverting back to her children upon his death or his decision to sell the property. Her personal items (clothing, money etc) were to go to her children, unless her husband outlived her (it is not defined how long he needed to outlive her in order to inherit.) The research I have done on my own tells me that having their deaths declared simultaneously would make the undefined survival a non-issue. 

 

I am currently without legal representation as my previous lawyer quit upon me bringing the coroner’s reports to his attention. We have a court date scheduled in two weeks. 

 

So far this morning I have spoken to three attorneys who have said they don’t have enough time to prepare for something this complex and time consuming. Each of them has said I may petition the court to have their deaths declared simultaneous, without giving further instruction, other than saying the burden of proof lies on the husband’s estate because they stand to benefit from him outliving her.

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What state did the deaths occur in?  A caption on your profile implies that you are posting from California, so is that where the deaths occurred?

 

http://www.easylawlookup.com/California-Law/Probate-Code/par-235/_easylookup.blp?GO=Prepare&site=easy&print=&data=probate&p_start=7&p_end=9&p_para=235&p_epara=264&par=235&displayer=YES

 

When interviewing with attorneys, stress the value of the estate so they will be more likely to take the case.  The simultaneous death issue is somewhat complex but not completely unresolvable if someone is willing to take the time to do what is necessary.

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Yes, the deaths occurred in California. Aside from the property itself, there aren't much in the way of liquid assets. The insurance proceeds total just under $750k, which as I stated earlier the husband's heirs believe is entirely theirs. 

 

Are the necessary steps that need to be taken something I can do with a paralegal while I search for counsel? Are there specific things I can search for at the university law library?

 

The coroner said he would write a statement saying given the information he had, he could not give a definitive answer on who died first. Is that helpful or a waste of time?

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2 hours ago, CandidyRae said:

His heirs believe they are entitled to both checks, even though the home was gifted in her will.

 

What does "the home was gifted in her will" mean?

 

 

2 hours ago, CandidyRae said:

In her will, her half of the home was to go to her children, unless her husband outlived her, with her 1/2 reverting back to her children upon his death or his decision to sell the property.

 

That probably wouldn't have been enforceable but probably isn't important given the simultaneous deaths and the destruction of the home.

 

 

2 hours ago, CandidyRae said:

We have a court date scheduled in two weeks.

 

What is the purpose of this court date?  Also, I assume this court date relates only to the administration of your sister's estate.  Correct?

 

California Probate Code section 220 provides as follows:  "Except as otherwise provided in this chapter, if the title to property or the devolution of property depends upon priority of death and it cannot be established by clear and convincing evidence that one of the persons survived the other, the property of each person shall be administered or distributed, or otherwise dealt with, as if that person had survived the other."

 

What that probably means for your purposes is that insurance proceeds in question belong equally to the two estates.  Also , I assume the insurance under discussion is property insurance on the destroyed home, and not life insurance, but it would be helpful if you clarified that.

 

You didn't mention if the husband's estate is also being probated.  If it is, then one thing that probably needs to be done is for the administration of the two estates to be consolidated.

 

A petition to determine survival can be filed under Probate Code section 230, et seq.  This doesn't appear to be something for which there is a Judicial Council form and, in any event, is not a good DIY project, and especially since you're presumably not a beneficiary of your sister's estate, obtaining competent probate counsel is critically important.  Depending on the purpose of the upcoming court date, it's probable that the only thing that needs to be accomplished before then is to ask the court to continue the hearing.

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