Elderlaw Advocates -- September 1, 2020
Dear Len & Rosie,
I am married, and we have a 10-month-old boy. We both work, but live paycheck to paycheck. We have a mobile home, which I bought before I met my wife. If anything happens to me, the house is hers. I do not even mind putting her on title. Now that we have a child, what paperwork should we be doing? Also, what paperwork do we need to do to say what we want to happen with our son if something happens to both of us?
You and your wife do not need a trust, because you do not have an estate subject to probate in the courts. An estate worth less than $166,250 can be collected using small estate affidavits under California Probate Code section 13101, and the value of your automobiles and mobile home do not count against that limit.
What you need are wills, and the cheapest way to get one is to get one for free. If you do an Internet search for ďCalifornia Statutory WillĒ you will find direct links to a free form will written by the California Legislature. Itís available at the State Bar webpage under consumer information at www.calbar.ca.gov.
Be careful filling out the form. You want your estate passing to your wife if she survives you and then to your children if she does not. The form also allows you to nominate guardians who will have custody of your minor children if your wife dies before you. Her will should mirror yours. The wills must be witnessed by two adults who are not inheriting from you. Please note that in California, wills are never notarized.
In addition to wills, you and your wife should have Advance Health Care Directives and Durable Powers of Attorney so that you may make important medical and financial decisions for one another in the event one of you should become incapacitated.
You should be able to get Advance Health Care Directive forms from your medical provider, or just email us at firstname.lastname@example.org and weíll send one to you. AHCDís should be witnessed by two adults, one of whom canít be related to you or inherit from you, or you can skip the witnesses and just have it notarized.
For your DPOAís, thereís a California Statutory Durable General Power of Attorney form you can search for on the internet. Itís good for most purposes and should be signed before a Notary Public.
Keep in mind the risk of doing your own estate plan. You may make mistakes without knowing that you did, and not having an attorney review your completed documents does put you at risk that your estate plan wonít work the way you want it to.
Len & Rosie
Dear Len & Rosie,
My mother has a trust. I am her sole successor trustee. I have two brothers and a sister. My mother is leaving my younger brother only $1, because he was once convicted of marijuana possession and he never calls or visits. She thinks he is still a dope-smoking pothead. What would have been his share is to be divided up among my cousins and the church. As the trustee after my mother dies, am I able to ignore her wishes and give my brother his fair share of my motherís property? How difficult is it to change it the way I see fit? This is really bothering me because itís just not fair. I feel all of her children should be treated alike.
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.
Hereís a simple rule you need to know. You may give away your money, but you may not give away other peopleís money without their permission. Youíre not the government. As trustee, your job is to marshal the trust assets, liquidate what needs to be sold, pay off the debt, and distribute the trust the way your mother said so.
You are obligated to provide a legal notice concerning the existence of the trust to your cousins and the church within 60 days of your motherís death, and you also have a duty to provide them with a copy of the trust upon their request. This means that the terms of the trust wonít be kept secret, and that means if you decide to swindle your cousins and the church then theyíll know about it. You can be relatively sure that as least one of them will sue you. Theyíll win too. If that happens after youíve given away all of the trust assets, then itís all coming out of your pocket.
You should also think about your motherís wishes. She may be entirely justified in leaving your brother nothing. Maybe your mother wouldnít mind so much that your brother smokes marijuana if he bothered to keep in touch with her. If he acted as if he werenít one of her children then why should she treat him like one in her estate plan?
Remember, itís your motherís money, not yours. The only valid definition of whatís right and whatís fair is the one in your motherís heart. As long as she can make her own decisions, your mother can leave her property to whomever she sees fit. If you want to change this, try to reconcile your mother with her prodigal son.