Legal Question in Wills and Trusts in California

Hello and thank you for your help. This is creating ALOT of frustration in this house. I live in CA (community propery state). Me and my wife have each been married only to each other for 30 years. We have 2 kids, 25 and 27. I bought property at an auction that is titled as "Married Man as sole and separate property". To 1031 exchange this property I cannot now add my wife. She must sign off "ALL RIGHTS" to this property each time it is exchanged. I believe it makes no difference to sign these releases, since if I die tomorrow the property will still go to her. She says it will go to the kids. Who is right?

Asked on 10/15/10, 10:35 am

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Neither of you. In the absence of a will, it will go partially to her and partially to the kids. Of course if you used community funds to buy it at auction, the fact that record title is as sole and separate property would not matter if she put a claim into probate for it as community property. That would be made more difficult if she subsequently quitclaims that or exchanged property. It really sounds like the solution to easing frustrations and restoring household harmony is to do some past-due estate planning.

Answered on 10/20/10, 11:24 am

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Michele Cusack Pollak & Cusack

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If you own real property, it makes sense to get professional estate planning and set up a living trust, but if you don't want to do that, it is easy and free to use a California Statutory Will, so that you can specify that all your assets, including community property, go to your wife (if that is what you want.) You can get the form and instructions at the state bar website: http://www.calbar.ca.gov/LinkClick.aspx?fileticket=f7GNRmXiwl8=&tabid=1404

Answered on 10/20/10, 11:53 am

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