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Elderlaw: 11/01/2016


Dear Len & Rosie,

My 74-year-old stepmother has been diagnosed with terminal kidney cancer and is expected to die within two years. Her will provides that their home and other assets be sold and distributed 50-50, half to her kids and half to my father. Is this legal and enforceable? I’m afraid that my father will be displaced and lose his home and his independence when she dies.


Dear Maria,

Your stepmother has the right to leave her assets to anyone she wants upon her death. She is under no legal obligation to leave anything to your father at all. Many people in second marriages want to make sure that their children from prior marriages do not lose their inheritance. Over the years, we’ve heard many widows say that their late husband’s children never respected them, or the stepchildren were being greedy, or a stepchild was asking too many questions about the will or trust. If your stepmother dies first and your father inherits everything, then he could very well disinherit her children. This is probably what she was thinking when she made her will.

But it may not work out the way she wants. When your stepmother dies, her will shall apply only to her probate estate, which consists of assets titled in her name alone, in tenancy in common with others, or in community property (but not community property with right of survivorship) with your father. If the home is titled in joint tenancy with your father, he’ll own it and any other joint tenancy assets outright upon his wife’s death, no matter what her will says. He’ll also inherit everything left to him by beneficiary designation.

But that’s leaving it all to chance. A joint tenancy can be severed (converted into a tenancy in common) anytime before the death of either joint tenant. Your stepmother can do this by herself without the consent of your father, as long as the deed is recorded before her death. Or, if she signs the deed severing the joint tenancy within three days before her death, her children can record it within seven days after her death.

The best way of dealing with this problem is for your father and his wife to communicate with one another about what each of them want. They should also meet with an estate planning attorney to review their existing estate plans. There are many possible solutions that will allow the surviving spouse to stay in the family home and receive the benefit of both spouses’ assets while protecting the inheritance rights of the deceased spouse’s children.

For example, your stepmother can give your father a life estate in her half of the home and pass the remainder interest on to her children. Or she could have her half of the home held in a trust for your father’s benefit. The two of them together could even enter into a written contract promising to leave everything to one another on the first death, and then to both families equally on the second death.

Don’t forget that your stepmother is ultimately in control of her own assets. She does not have to create a trust with your father, and may still want to leave everything to her children upon her death. Brush up on your sales skills and try to persuade her that allowing your father to live in the home until his death is a good thing for her to do, and that she can do this while still protecting her own children’s inheritance.

Len & Rosie

Dear Len & Rosie,

Both my husband and my son have recently died, leaving my daughter and me. My will was drawn up in 1989 so that my children would share equally if anything is left to share. My daughter has no children, but my son had two. Will my son’s children split his share of my estate or must I contact a lawyer and make a new will? Or should I get a trust instead? I want to make sure that my grandchildren get their fair share.


Dear Clara,

The answer to your question depends on what exactly your will says. The dispositive provisions of your will (the part of your will that says who gets what when you die), probably say that your children will split your estate into shares by “right of survivorship” or by “right of representation.” These are important phrases that you should understand.

“Right of survivorship” means that each gift will lapse if the person you are giving it to dies before you do. If your son inherits through your 1989 will by right of survivorship, then your daughter will inherit everything when you die and your son’s children will get nothing.

“Right of representation,” which is sometimes also called “per stirpes,” is what you want. If your gift to your son is by right of representation, then his gift will not lapse because he died before you. Rather, it will pass on to his issue, which means his two sons will share one-half of your estate. Your son’s widow will get nothing.

If your will does not specify that your son’s gift is either by right of representation or by right of survivorship, then you ought to have an estate planning attorney look at your will. California has an anti-lapse statute that could pass your son’s half of your estate to his children, but it will not apply if the precise wording of your will shows an intention that your son must survive you to receive a portion of your estate. Your will should also hold your grandchildren’s inheritance in trust until they are mature enough to be responsible with it. Otherwise, your 18-year-old grandson will spend it all on a new car that he can’t afford to insure.

This can get a little bit complicated, so you should rely on the professional opinion of an attorney, instead of trying to figure it out for yourself. You do not want to make mistakes with your will, because you cannot fix them after you are dead.

You should also look into creating a trust. Wills pass through probate in the courts, which is very lucrative for attorneys. If you own a house, or if your estate is worth more than a couple of hundred thousand dollars, then you ought to consider a revocable trust. A trust will cost you more money than a will, but it will save your family time and money after you pass away.

Len and 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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