Legal Question in Wills and Trusts in California

I have a rather complicated question concerning the rights of a spouse regarding the division of a single family home property in California. This couple was married in 1976. The home was purchased in 1981. It was deeded as Joint Tenancy. Purchase price was approximately $72,600. Current value as of Aug. 2017, according to the RMV estimate, is approximately between $530,000 to $646,000.

The couple began living apart in 2010. The husband remained in the home. There was no legal separation nor divorce. The husband, seven years later, upon learning he would not survive cancer, set up a trust for his adult daughter from a previous marriage. The trust attorney filed the paperwork to severe joint tenancy. The husband died in Sept. 2017. The mortgage was not paid off at the time of the couple living apart. It was paid off somewhere between that time and his death. The wife believes there was approximately $40,000 left on the mortgage when she was asked to leave the home in 2010.

The wife had a meeting with the husband's estate attorney, trust executor, and the daughter. The estate attorney is attempting to treat the division of the home as if it was a divorce, wanting to find the value of the home, what was owed on the mortgage, and know of any improvements made after the wife moved out. to determine what she may receive.

As there was never a divorce, nor legal separation, the wife wants to know what her rights are and if the trust executor's attorney can indeed use this formula to cut the amount of her share of the property, and if she needs an estate attorney of her own, and a CPA?


Asked on 9/21/17, 5:14 pm

2 Answers from Attorneys
Aaron Feldman Feldman Law Group

The husband always had the legal right to leave his 1/2 of the community property to his daughter. So it seems the wife should be getting her 1/2. She should definitely lawyer up as they say because these are significant legal rights. Under another theory, she is an omitted spouse and would be entitled to 1/2 of his estate, including his separate property (if any).

Read more
Answered on 9/21/17, 5:19 pm
Michele Cusack Pollak & Cusack

Yes, she should get her own lawyer!

Read more
Answered on 9/21/17, 5:22 pm


Related Questions & Answers

More Probate, Trusts, Wills & Estates questions and answers in California