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Elderlaw: 10/15/2009

Elder law Advocates

Dear Len & Rosie,

My 78-year-old father died last November. My stepmother inherited everything under his will, even though Father always said that my brothers and I would get his money when he died. Of course, she is also named the executrix of his estate.

My father was married to her for over 20 years and cared for her at home until the day he died. When we buried him, her family praised him at the funeral for taking care of her for so long.

The problem is that she has had full-blown Alzheimerís and now lives in a rest home. She is entirely incompetent, and could not even recognize my father in the last year of his life. Her son served as my fatherís executor, because of her disability.

She is actually very wealthy, and does not need the money given to her by my father. She owns two houses, a vacation home, and a six-figure brokerage account.

I have seen her will, and she gives nothing to me or my brothers. Our inheritance has been thrown away to a woman who canít use it and doesnít even know she has it. Is there anyway to fight this?


Dear Kathy,

This whole problem could have been avoided if your father had made his wishes clear in his will. He could have left his estate in a trust for the lifetime benefit of his wife that would pass to his children upon her death. Because your father failed to do this, you have big problems.

There are two ways you could try to get a portion of your fatherís estate. First, you could simply ask your stepmother to give you the money. Unfortunately, since she can no longer make decisions for herself, she cannot give you the money. You could ask her son, who is probably managing her estate with a power of attorney or through a conservatorship. But that wonít work either. He cannot give away his motherís money without breaching his fiduciary duty.

The other alternative is to challenge your fatherís will in court, but itís very difficult to throw out a will. The court wonít toss out a will because it isnít what you think your father really wanted. What your father told you doesnít really count Ė itís the words of his will that are important.

To win, you have to get the court to throw out the will. You would have to prove that your father lacked mental capacity when he executed his will, or that he was the victim of undue influence. And even if you win, your step-mother will still inherit one-third of your fatherís separate property and all of the community property.

Frankly, your best bet may be to come to some sort of accommodation with your step-motherís family. If their respect for your father extends to his children, you and your brothers may get your fatherís estate after his wife passes away.

Len & Rosie

Dear Len & Rosie,

After my second wife passed away, I put my stepdaughterís name on the title to our house as joint tenants. I tried to sell the house last year but she would not sign the papers because she said she wanted the whole house. I went to a lawyer, and he didnít do anything. I went to another lawyer, and still nothing. I have already spent $7,000 on lawyers and I have made no progress.

All I want to do is sell the house and give her one-half of the money I get, but she wonít listen. My stepdaughter wants to buy the house from me for only $40,000. If she gets it, sheíll sell the house for a lot more money. I pay all the upkeep on the house, including taxes, insurance and everything else. She never paid a cent.

I am 77 years old and she is waiting for my death so she can get everything. She never sees me and has never done anything for me since her mother died, even though she lives only three miles away. She is so mad about me because I have a girlfriend who takes good care of me. I want to sell the house, but not to her for what little she wants to pay. I worked too hard for that. Do I have the right to sell the house without her signature?


Dear Domenic,

Every once in a while someone asks why we tell people to put their homes into a revocable trust to avoid probate instead of just adding their children to the title of the property. The next time that happens, I will show them your letter. When you gave your stepdaughter part of your house, you gave up your exclusive control of it. Your daughter is as much an owner of the house as you are, at least according to its title. Because of this, you cannot sell the home without her agreement.

You can sue your stepdaughter and ask the court to revoke the joint tenancy deed and return the property to your name. You have a case, as long as she did not pay you for her half of the home, and has never contributed to its maintenance, insurance, and property taxes. Your attorney can argue that you added your stepdaughter to the title to the home only to avoid probate, and that you didnít mean for her to own an interest in the property until after your death. This is not an automatic win, because you have to overcome the legal presumption that the title to the home is correct. This may be what your attorneys have tried to do for you. Unfortunately, itís not cheap. This may easily cost you more than $7,000 to see it through.

If youíre willing to settle for half and you want to sell the property now, you can sue your stepdaughter in an action for partition. The court will order a neutral party to sell the property and divide the proceeds of the sale between the two of you.

If you do not want to sell the property, you can sign a deed that will sever the joint tenancy and change the title of the property to a tenancy in common. Your stepdaughter will still own half, but she wonít get your half when you die. Then, you can leave your half of the home to someone else in a will or revocable trust.

The lesson learned here is this: Donít add a child or stepchild to the deed to your home without the full understanding that you canít just take it back whenever you want.

Len & Rosie

Len 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 Len also answers legal questions each weekday, Noon-1 p.m., and Sundays, 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 (707) 996-4505, or on the Internet at Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.

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