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Elderlaw: 11/01/2010

Elderlaw Advocates



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 partnerís 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. Itís 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 the title insurance company will prepare for you in escrow when you sell the mobile home.

Your partnerís 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 ďmanipulation.Ē Not that weíre saying you manipulated him, of course.

Realistically, his sons probably do not have a good case, and thereís not enough money involved to get most 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 partnerís funeral and burial expenses if they are inheriting the money market account through their fatherís estate. The estate is subject to the creditors claims and the costs of funeral and burial expenses. But if they are willing to grudgingly accept your ownership of the mobile home, itís probably better to follow your initial instincts and let them keep the money.

The lesson learned here? Itís best to have an estate plan, even if itís 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 partnerís wishes really were with respect to the disposition of his assets.

Len & Rosie




Dear Len & Rosie,

I am married to my second husband but our home is in my name alone. It was purchased and paid for by my first husband and me. We have a small loan of $5,000 against the property. I would like to leave the house equally to my husband and my two daughters by my first marriage. I need either a will or a living trust, but I want whatever will make it simpler for those I leave behind.

Sara



Dear Sara,

Interestingly enough, if you want your home to be divided equally between your husband and your two daughters, you do not even have to have a will. Because the house was your sole property before you married your second husband, it is your separate property, except for whatever small portion of your community property that has gone into paying off the loan you mentioned. Under Californiaís intestate succession laws, your husband will inherit one-third of your separate property and your children shall divide the rest, if you die without a will.

But you should have a will anyway. Simple wills are very inexpensive. Without a will, you cannot appoint an executor to administer your estate and there could be some conflict in your family about who should be executor. Also, if one of your daughters dies before you, her share shall pass to her children, if she has any. If a minor grandchild inherits from you upon your death, the grandchild would receive his or her share outright upon his or her 18th birthday. Most 18-year-olds are not responsible enough to manage that sort of money. An estate plan that creates a trust for the benefit of minor beneficiaries is vital.

You may also want to reconsider your intention to give your daughters two-thirds of your home immediately after your death. If they and your husband own your home together, any one of them can sue the others and force a sale of the home in an action for partition. Conceivably, your husband could wind up with some cash in his pocket and no place to live.

An alternative to giving everything away outright is a revocable trust, or a testamentary ďhouse trustĒ written into your will. A trust can hold your home for the benefit of your husband for the rest of his life. After your husband dies, the trust can then give everything to your two daughters. This way, your children will ultimately get all of your property, instead of just two-thirds, and your husband will be assured of a place to live out his days.

You should visit an estate planning attorney, to discuss what you want to do with your property when you die. Even when people have simple desires such as your own, complications that they are unaware of can ruin their plans. An attorney can let you know of the things that can go wrong and help you create an estate plan which will do what 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 www.lentillem.com. 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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