Legal Question in Wills and Trusts in Arizona

Placing property in Trust

My wife is listed as sole owner of our primary residence. We have been married 20 yrs. She owned the house since she was widowed for 9yrs prior to our marriage.We have subsequently jointly paid off the 30yr mortgage early and made many improvements. Her will states I may continue to live in the house unless I remarry then the house would pass to her 2 children. (1) If she puts the house into her trust would that preclude me from obtaining my interest in the house if she dies and the property is transfered to the children by the trust? (2)If the house is left out of trust and goes thru probate how would it be determinined what my interest in the property is if it was sold or I decided move? My concern is we are about to update her trust and create another trust for our other assets. One of the children is about to be limited in her trust due to freespending son inlaw issues so I anticipate problems regarding the house. The ''favored'' child is the executer of her will and may be inclined to side with the sibling if I were to remarry or just move out and downsize.


Asked on 9/05/05, 6:13 am

1 Answer from Attorneys
Donald Scher Donald T. Scher & Associates, P.C.

Re: Placing property in Trust

I suggest that you talk to her directly about what constitutes your exact interest in the house. Since the house was her separate property before your marriage and she has not commingled it with your community property, the house is presumed to remain her separate property, except that you have a claim that there is a community property interest in the house. When you use community property to benefit or improve one spouse's separate property, there may be a presumption of a gift by the non-owning spouse to the other spouse. In order to avoid a law suit later, sit down with your wife and competent counsel, and resolve the issue of who has what interest, then you/she can draft wills and trusts that reflect your agreement as to ownership, and properly protect the interests of all parties who may be involved.

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Answered on 9/05/05, 10:19 am


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