Legal Question in Real Estate Law in California

Re: Trust Accounts regarding property

A living trust or a new deed would likely be appropriate depending on the circumstances. If you would like legal counseling in this area, let us know.

Re: Trust Accounts regarding property

First, if either of you has been making payments on the house out of current earned income, there is at least a small community property interest in the house.

Next, an intestate (having no will or trust) spouse's separate property passes 100% to the surviving spouse only in uncommon situations, where there is no child, sibling or parent. Otherwise, the surviving spouse will get only 1/2 or 1/3, depending upon how many other close kin there are. See Probate Code section 6401(c).

Neither of you should allow this to happen; it can be a mess, and rarely is it what either of you want. Furthermore, the house surely isn't the only property of significance. There are insurance benefits, personal property, savings, etc. to be considered.

The best solution is to find an attorney who specializes in estate planning and have two coordinated living trusts set up, probably along with pour-over wills to catch property not placed into the trust. Second best is to have two wills prepared without trusts, but this is usually not best practice these days.

Finally, don't confuse a trust and a trust account. In this situation at least, you need to establish a trust before you can have trust accounts, just as you would need to incorporate a business before you could open corporate bank accounts.

Re: Trust Accounts regarding property

You will need to prepare and record a new deed transferring title from your husband's name alone to his name and your name. Title can be vested in a number of different ways, each of which has different outcomes upon the death of one of the people on title.

I recommend that you have a real estate attorney advise you about the different ways title can be held, and help you decide which method of vesting is best for you. I would also recommend having a real estate attorney prepare the deed; if the deed is not prepared properly, it could cause problems in the future.