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Elderlaw Advocates

Len Tillem & Rosie McNichol
Elderlaw Advocates

Dear Len & Rosie,

My father passed away last December. He and his wife set up a trust with an attorney a few years ago. My sister and I are his only legal adult children. His wife had five adult children when they married in 1982. I am trying to be sensitive to his wife in this difficult time. Unfortunately, she stopped talking to me before he died.

Months have passed and I have not heard anything regarding his will. I would like to know if my father designated any personal effects and/or monies to me in his will. Are there any rules or regulations that require them to notify me if I am mentioned in his will? What happens to his designations for my sister? She is out of contact with the family and unaware of his death.

What can you tell me about estate notices I sometimes see in the newspaper? Does this notice apply to a will that is held in a living trust?

Kathi Dear Kathi,

California law has several things to say about what happens to your father’s estate planning documents upon his death. If he had a will — and he probably did, because most people who create trusts have pour-over wills leaving their estates to their trust — then the person in possession of the original will must file the will with the Superior Court in the county where your father resided upon his death. If his will was properly lodged with the court, you can get a copy of it from the court’s files.

But your father and his wife had a trust, and that makes it different. Whether or not you are entitled to a copy of the trust depends on how the trust was written. If all or part of the trust became irrevocable upon your father’s death, then the trustee is required by California Probate Code section 16061.7 to notify you within 60 days of your father’s death of the existence of the trust and your right to a copy of the trust document.

On the other hand, if your father’s trust didn’t become irrevocable upon his death, then you do not have a right to a copy of the trust. This puts you in a Catch-22. Is your stepmother not giving you a copy because she’s being sneaky? Or is she merely protecting her right to privacy by not giving you information you’re not entitled to.

You have a couple of options. One is to get a copy of the deed to your father’s residence. It’s probably in the trust, and you may get the name and address of his lawyer off the face of the deed. If so, contact the lawyer and ask what’s going on. You may get some information that way.

If that doesn’t work, you can hire a lawyer to send your stepmother a letter demanding a copy of the trust. Even if you’re not entitled to a copy, this letter will likely cause your stepmother to visit her own lawyer, and that will probably result in everything being straightened out.

But beware. If your stepmother has the right to amend the trust, she may disinherit a stepchild she perceives as being “pushy.” Tread lightly.

Len & Rosie Dear Len & Rosie,

My sister and I inherited an apartment building. My wife of thirty-one years and I have a trust. I have no problem adding her name to the deed as a trustee, but could I stipulate in an agreement with my wife that if she asked me for a divorce down the road she would give the property back to me?

Douglas Dear Douglas,

Everything you and your wife acquire during your marriage as a result of your labor is community property. But you did not earn your inheritance. Everything you inherit is your separate property and will remain separate property unless you do something to transmute it into community property. California law requires an express transmutation in writing that clearly states you are converting your separate property to the community property of you and your wife.

The trust documents we draft for married couples include a provision that says putting property into the trust, or taking it out of the trust, will not change its characterization as either separate or community property. Because of this provision, your inheritance should not be transmuted into community property if you put it into your revocable trust, even if your wife is a trustee. Our trust documents also allow either spouse to hold his or her separate property in his or her name as sole trustee, even though both spouses are trustees of the overall trust.

But that’s not playing it safe. We did not draft your trust. It could say that everything in the trust is community property. If you sign a deed putting your half of the apartment building into your joint trust and you get divorced later, your wife can make things very difficult for you. Remember the old saying that possession is nine-tenths of the law? If the two of you get divorced, she may refuse to sign a deed putting the property back into your name, even though it belongs to you alone. It would make your divorce more expensive than it would be otherwise if you have to fight her over this.

It’s a silly rule, but the best way to keep your separate property separate is to keep it separate. The cautious thing for you to do would be to keep the property out of your wife’s name, even as a trustee. Create a new revocable trust just for your separate property. Keep it separate by never, ever transferring anything into your separate property trust that can be traced to any community property source. Name the children as your successor trustees instead of your wife. Or, consult with your estate planning attorney and review your trust to verify what would happen to your apartment building if you were to get divorced.

On the other hand, you and your wife have been married for over three decades, and you can be fairly sure that she hasn’t stuck with you this long just to cash in on your inheritance.

Len & Rosie Rosie McNichol and David Brown are elder law attorneys. Contact them at Tillem McNichol & Brown, 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at www.lentillem.com.

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