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Elderlaw: 11/01/2007

No will, joint tenancy challenged



Dear Len & Rosie,

My partner of the past 10 years passed away recently. He did not have a will. His only assets were a mobile home worth about $80,000 and $42,000 in a money market account. He has three grown sons with whom he had not been on speaking terms for the past four years. Although we did not live together, my name is on the title of the mobile home as a joint tenant.

His sons have become hostile toward me. Is there any way they would have rights to any proceeds I might receive from the sale of the mobile home? Also, I have paid for all of my partner’s burial costs with my personal credit cards. Do I have a legal right to be compensated by his evil sons? I was just planning on absorbing the cost, but since they are causing me so much grief, I would like to make them pay if they are legally bound.

Suzanne

Dear Suzanne,

You should not have to worry much about the mobile home. It’s yours as the surviving joint tenant. All you need to retitle the mobile home in your name is a death certificate and California Department of Housing paperwork that you can hire a title company to prepare for you. It will not be very expensive.

Your partner’s sons could try to sue you for the mobile home. They could claim that their father lacked mental capacity when he put it into joint tenancy with you, or they could claim that he was the victim of your undue influence. It is not likely that his capacity will be in question, especially if he added you to the title of the mobile home years ago.

An undue influence claim can be made if you procured the documents adding your name to the home and your partner held you in a position of trust and confidence. If this is the case, then the burden of proof may be on you to show that your partner gave you his home of his own free will and not as the result of your “manipulation.” Not that we’re saying you manipulated him, of course.

Realistically, his sons probably do not have a good case, and there’s not enough money involved to get most trusts and estates lawyers excited enough to offer to take the case on a contingency fee. This means the sons will have to sue you on their own nickel, and they are not likely to do that.

The sons could be made to pay your partner’s funeral and burial expenses if they are inheriting the money market account through their father’s estate. The estate is subject to the creditors claims and the costs of funeral and burial expenses. However, if they are willing to grudgingly accept your ownership of the mobile home, it’s probably better to follow your initial instincts and let them keep the money.

The lesson learned here? It’s best to have an estate plan, even if it’s a simple will. If your partner had hired a lawyer to prepare a will for him, the lawyer and his or her staff would be available as neutral witnesses as to what your partner’s intentions really were with respect to the disposition of his assets.

Len & Rosie


The List of Eleven
Dear Readers,

We would like to share with you something that we share with each of our trust clients. It’s really important, our clients like it, and we think that your family can benefit from it as well. You may have seen this in the column before. We print it year after year. Consider it as a gentle reminder to get yourself organized. One of the most tedious tasks in administering a trust or an estate is finding the decedent’s estate planning documents and asset information. Frequently, children or even spouses have no idea where their parents or spouse kept these important documents.

After you pass away, the last thing you should want is for your loved ones to have to search through your belongings in a morbid scavenger hunt to find your will, stock certificates, or other important papers. They shouldn’t have to lift up your mattress to look for your safe deposit box key. They shouldn’t have to waste a month waiting for new account statements to come in the mail so they can figure out where you invested your savings.

To avoid these difficulties, you should organize your personal and financial data. This is where the list comes in. Collect the information described in this list and give a copy to your children or close relatives, or keep it somewhere safe and let your family know where to find it. In case something happens to you, the List of Eleven is one of the best ways to ensure that your relatives can find all your vital records.

Write it down!

  1. The name of the bank where you have your safe deposit box, its number, and the location of your key.

  2. The numbers for all of your insurance policies, health, life, auto, home, burial, etc., and the names and addresses of the agents for each policy.

  3. A list of your stocks, bonds, mutual funds, and the name and address of your broker.

  4. The names of the banks or savings and loans for each of your accounts, and the account numbers, or even copies of account statements.

  5. The location of your cemetery plot or mausoleum niche.

  6. The location of your will or trust and the name of your attorney.

  7. Your credit card numbers.

  8. Your Social Security Number.

  9. The name and address of your mortgage holder, the account number, and the amount of the outstanding debt.

  10. The name and address of your accountant, and where your past income tax returns are located.

  11. The type of memorial or funeral service you want.

If you think this is too hard to do yourself, consider how hard it will be for your children to deal with after you pass away. Take a few minutes to get organized.

Len & RosieLen Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at www.lentillem.com. Len also answers legal questions each Sunday, 4-7 p.m. on KGO Radio 810 AM.

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 996-4505, or on the Internet at lentillem.com. Len also answers legal questions each weekday on The Len Tillem Show, a podcast available via iTunes, Facebook, www.spreaker.com/user/lentillem and lentillem.com.
Email: lentillem@kenwoodpress.com

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