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Elderlaw: 01/15/2016

Elderlaw Advocates

Dear Len & Rosie,

For years, an uncle of mine would pull me aside and tell me I was named in his will. At one time, he told me the name of his lawyer, but being young and foolish, I lost it. Is there anything public that is recorded at the time of someoneís death in regards to their will? How do I go about finding out if there was anything he wanted me to have? He always told me in secret. He told me he didnít want his wifeís children to get it all. All I want to know is if thereís a way to find out what his wishes were, and that they were carried out. How do I go about that if I donít even know his lawyerís name?


Dear Becky,

Youíre looking for a needle in a haystack. You should probably ask his wife in as polite a way as humanly possible. Donít call up a widow and start asking her for money. Thatís in bad taste. But thereís nothing wrong with mailing her a polite note where you ask if your uncle had a will or a trust and whether or not youíre entitled to anything, because thatís what you heard. Then apologize for even sending the letter, but say you had to ask because you really needed to know. If your uncle has children, you can ask them too.

If youíre not willing to ask the hard questions, then you should understand that itís extremely unlikely that your uncleís will or trust leaves you anything until after your aunt has also died. Unless he was married to his wife for only a short time, he likely put her needs above yours or any of his other relatives.

If your uncle has a will, the will probably says something like this: ďI leave everything to my darling wife, and if she dies before me, I leave it all to my niece Becky and the rest of my family tree, except maybe for that nephew who never calls and never writes.Ē If your uncleís will says that, then drop it. The wife got everything, and if youíre nice to her, she may leave you something upon her death out of the kindness of her heart.

While your uncle may have left a gift for you on his will, even if his wife is still alive, remember that his will controls the disposition of only those assets titled in his name alone, with no joint tenants or pay-on-death beneficiaries, or assets held in a trust. If he was married to his wife for a long time, itís likely thereís nothing youíll inherit, at least until your auntís passing.

You can check the superior court in the county where your uncle resided for a copy of his will. His original will should have been lodged with the court within 30 days of his death. You can also get a copy of the deed to his home to see if any of the property will be subject to probate, and you can also see whether or not your uncle and his wife created a trust. If the home is in the trust, the lawyerís name may be found somewhere on the deed. Call the lawyer with your sensitive questions if you are not willing to ask your aunt.

Len & Rosie

Dear Len & Rosie,

My mother is thinking about giving most of her money away within the next year or two to her two children and many grandchildren. She has about $100,000, and does not own a home. Mother is especially concerned that my brotherís wife not get any of it. (Donít ask). If she gives a gift of money to her son is that considered separate property or community property?


Dear Nancy,

The default rule is that everything a husband and wife acquires during their marriage is community property. Fortunately, a gift or inheritance is separate property. But thatís only half the battle. Your brother has to be careful to keep his separate property separate. He should keep the money in accounts that do not have his wifeís name on title.

Your brother may even want to put the money into accounts at completely different financial institutions than where he and his wife keep their money today. With the popularity of online banking, it could be possible for your brotherís wife to access his separate property accounts through the Internet, just because they have already arranged for online access to their other accounts.

Also, your brother must never, ever, ever, put any money into his separate property accounts that comes from a community property source, such as his paycheck. Thatís called commingling and will likely result in some of your brotherís pre-inheritance gift being counted as community property if he and his wife divorce. If he commingles community and separate property within the same account, the burden of proof would be on him to show what portion of the account should be his and his alone.

You may have to protect your brother from himself. He may not be strong enough to withstand his wife, so he could put her name on the accounts anyway. Your mother can prevent this from happening by putting your brotherís share of her gifted money into a an irrevocable trust. That way, the money can be spent on your brother and he wonít be able to give it to his wife.

If your mother gives away more than $14,000 to any one person this year, she must file a gift tax return with her income tax returns next year. But her unified credit protects the first $5,430,000 of her assets from gift and estate tax, so she will not have to pay any gift tax to the IRS.

But your mother should be concerned about Medi-Cal. She may be giving her money away because she is worried that she will wind up in a nursing home and have to spend her life savings on her care. If so, she should be very cautious. Giving away her savings in a lump sum gift would make her ineligible for Medi-Cal nursing home benefits for almost two years. If your mother is trying to qualify herself for Medi-Cal benefits if she needs nursing home care in the future, she should first talk to an Elder Law attorney who practices Medi-Cal planning.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 996-4505, or on the Internet at Len also answers legal questions each weekday on The Len Tillem Show, a podcast available via iTunes, Facebook, and

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