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Elderlaw: 06/01/2009

Elderlaw Advocates

Dear Len & Rosie,

My husband and I have wills, but he wants to get a trust, to save probate fees, he says. We have had our wills for over 30 years and my daughter is listed as our executor.

My husband has a son and a daughter, by two different wives. His son has never worked for a living. He isnít disabled. My husband and I have been married for 36 years and have pretty much supported his son our entire marriage. Despite this, my husband wants to make him our trustee.

I want to protect my daughter and grandchildren, as my husbandís son is not close to them. My husband has a sizable amount of stock in his own name, and he and his son share a $50,000 account inherited from one of their relatives. Iím worried that wonít be enough to my husbandís son.

How can I make sure my daughter will receive her share of what I have accumulated if his son is put in charge of a trust? Should we even get a trust?


Dear Dorothy,

Whenever spouses talk to us about estate planning, we talk to them about potential conflicts of interest, because there may be things about which they will disagree. When clients have children from previous relationships, the conflict is often real, not just potential, so itís important to us, as lawyers, not to get caught in the middle.

Lucky for you, your husband did not sign your letter. That means we get to take your side. We are providing you and you alone with advice and we donít have to be concerned with your husbandís interests. So, our considered legal advice is that the last thing that you want to do is to make a trust that will put your deadbeat step-son in charge of all of your property when you die. The primary qualifications to be trustee is that the person has to be both honest and smart enough to seek professional help when itís needed. You do not trust your step-son. That means heís unqualified to be your trustee. Itís that simple.

If you die with a will and step-son was your executor, it might turn out alright, because your estate would go through probate in court. The court would look over your step-sonís shoulder to make sure he is doing the job right. But trusts do not go through probate. Your step-son could simply take all of your property and give it to himself.

If that were to happen, your daughter could sue him, and she would probably win. However, the attorneyís fees she would have to pay, the time she would lose, and the emotional stress of a court battle would cost far more than probate.

You need a trustee you can trust, or you need a will. You also need to consider putting some of your assets in pay-on-death accounts for your daughter. You should consult with an estate planning attorney by yourself, without your husband, to discuss how your daughter can get her fair share without having to fight for it in court.

Len & Rosie

Dear Len & Rosie,

I have a friend who is in her 70s. Her husband passed away three months ago. She and her husband got married in 2008, but had lived together for 30 years. He owned the house in his name alone. Unfortunately there was no will. She had lived with him in this house since about 1978. He has a daughter from a previous marriage who is trying to take the house. Additionally, sheís been told that since they were married for less than five years sheís not entitled to his Social Security. Is there anything I can do so that she can keep the house? I just canít believe his daughter is entitled to take something that was never hers.


Dear Debbie.

Your friendís husband died without a will. That means his home and everything else in his estate shall pass by intestate succession - the word ďintestateĒ means ďno testamentĒ as in ďLast Will & Testament.Ē Intestate succession is the default estate plan created by the California Legislature. Itís their best guess as to how most people would want their assets distributed when they die. Itís a shame the Legislature declined to disinherit wicked daughters from prior marriages.

In this case, your friend inherits all of the community property, but there probably isnít any, as her husband was probably already retired when they got married. She will also inherit either one-half of his separate property, if her husband had only the one daughter, or one-third of the estate if he had more than one child. So at best sheíll own half the home.

The only way your friend would be entitled to more than that is if she could prove that her husband promised to leave her everything, or at least the home, and that thereís a written contract, or she acted to her own detriment in reliance of her husbandís promises. Please understand that this is a Hail Mary Pass and isnít likely to succeed unless she has a lot of evidence in her favor.

Your friendís husband could have avoided this problem, and he could have even done it for free, by downloading the California Statutory Will form. And if he wanted to protect his daughter too, he could have created a trust that gave his wife the right to live in the home until her death. But itís too late for that.

As for Social Security, the rule is that you have to be married for one year for a surviving spouse to collect a pension off of the deceased spouseís earning record, so if your friendís husband died before their first anniversary, thereís nothing that can be done.

We hate to be the bearers of such bad tidings but we do so in the hope that readers of this column will take note. Weíre in a recession and everyone wants to save money, but with regard to estate planning, saving money in the short term frequently costs more money and creates more problems in the long term. Getting married or divorced is always a reason to consult with an estate planning attorney to make sure that your affairs are in order. If your friend and her husband had done that, your friend wouldnít be in such trouble today.

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.

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