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Elderlaw: 04/15/2019

Elderlaw Advocates April 15, 2019



Dear Len & Rosie,

Two very dear friends of ours have lived together, unmarried, for over 20 years. He owns the house. Both were married before and have grown children and grandchildren. Each of them are financially well-off, and they have bank accounts, investments, and other assets.

When we mentioned that we had a trust, they said they did not have a trust, or even wills, and they want nothing to do with them. I would appreciate any information you could provide about community property and the possible consequences of their decision not to plan for the eventual disposition of their assets.

Alfred

Dear Alfred,

Your friends are being a bit shortsighted. They are setting up their children and grandchildren for the very unpleasant experience of hiring lawyers to fight one another or to simply sort out the mess. The absence of an estate plan adds to a family’s trauma when they lose a loved one. They are not saving money by leaving things to chance.

We assume that your friends want their property to wind up in the hands of their respective children after both of them pass away. Having no estate plan at all is not the best way to make that happen. When one of your friends dies, any assets they own together in joint tenancy will go to the surviving partner. When the surviving partner dies, those assets will go to his or her children by intestate succession, leaving other family with nothing.

On the other hand, the surviving partner will have no rights to the assets of the deceased partner, other than those held in joint tenancy. There is no community property between cohabitating couples, unless they are married or have registered as domestic partners with the California Secretary of State. Any assets owned by the deceased partner, titled solely in his or her own name, belong to the dead partner’s probate estate and will pass to the dead partner’s children. In your friends’ case, if he dies first, she will be left with no interest in their home and may very well be forced to move out. Where is she going to live?

Your friends can avoid these problems by creating wills, or a trust that clearly spells out how they each want to dispose of their jointly acquired assets, as well as their separate assets. After one partner dies, a portion of the dead partner’s assets can be held in trust for the benefit of the survivor. For instance, he may want to preserve her right to live in her home of 20 years. He could do so simply by leaving her a life estate in the home in his will, or by creating a trust that holds the home for her benefit. When she dies, the home could then pass to his children, instead of going to her children.

Unless they truly do not care what happens to their property, each other, and their families, your friends really need to pull their heads out of the sand and create an estate plan to distribute their assets the way they want, instead of leaving it all to luck.

Len & Rosie

Dear Len & Rosie,

My wife passed away two years ago and I have been harassed by her family ever since. Everyone wanted everything back that they ever gave us. Some people get crazy over money, but my wife’s children even fought each other over who got to keep the flowers at the funeral. They make me sick. They are animals.

My wife had a will, which turned out to be invalid because it was partially written and partially typed. Her family got themselves an attorney to steal as much as they could. After two years, a settlement has been reached between their attorney and mine.

The strange thing is, my attorney fees are twice the amount of the settlement. Can the attorney fees be deducted from her estate? I need an opinion as my attorney balked on this issue.

Larry

Dear Larry,

There is an old saying that a man who represents himself has a fool for an attorney. What people need to understand is that a homemade will that makes perfectly good sense to the average person may have a lot of problems, and may even be totally invalid. You found this out the hard way.

If a person wants a will that’s more complex than “I leave everything to my spouse. If she dies before me, I leave everything to our children,” then that person should see an attorney to make a will, or accept the risk that things can go horribly wrong. People in second marriages, especially those with children from a prior marriage, should always see an attorney to make a will or trust.

You want to know if your wife’s estate should pay your legal bills. It depends. If you were appointed your wife’s executor by the probate judge, then you have a duty to defend the estate. That means your attorney fees would normally be paid by the estate. But from what you wrote, it seems to us that your wife’s will was never admitted into probate by the court.

You were also fighting your wife’s family as an heir of your wife. There is an inherent conflict of interest between your duties as executor, and your interests as a beneficiary. As executor, your duty is to administer the estate for the benefit of all the heirs, not just yourself. There is no way of really knowing how much of the attorney fees the estate should pay. That is why your attorney will not give you the answer that you want.

To tell you the truth, none of that really matters. You and the family of your late wife have entered into a settlement agreement to dispose of her estate. All of you agreed to forget about what the law says and cut a deal to avoid having to fight it out in court any longer. You are basically stuck with the terms of the settlement agreement you have already signed.

The lesson to learn is that sometimes free wills wind up becoming the most expensive.

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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