Legal Question in Wills and Trusts in California

Legally, what occurs is that your father can only will to the trust those items he owned at the time of this death. He would have to state what the items were and title for the properties would have to pass into the trust also. You probably want to pay a few hundred dollars to go to a good probate and trust attorney to see if the Trust was properly created or if some or all of the property should pass by the laws of intestacy [not having a Will].

Property bought by your mother's own funds is not community property and does not go to the trust but rather passes by her Will. You should take a video camera, with the time and date image on throughout, and film your mother stating that she is mentally sound and stating some current facts to show she is aware of her surroundings,with her then holding or pointing to the items you both feel are not community property and stating approximately when, for how much, and with what funds they were purchased or borrowed from you, and that she wants you, upon her death, to immediately be able to get all of the items she borrowed from you. Then play the film and write up as well as you can what was said [would be better if she draws up a script and reads from it].

But if the property was bought with funds that could be traced back to having been earned while your father was alive and were community property funds at the time, it might be argued that the new items are also community property.

You really need an attorney to interpret the will and trust, and to assist you will any administration. From what I gather, your step-brothers are entitled to a share of the trust assets and not entitled to specific assets. So the trustee (which may be you) can decide to give them cash or other assets as opposed to the assets which you give special sentimental value. Again see an attorney to assist you further.

Sincerely,

Kai H. Wessels, Esq.

Please be advised that the above is provided for informational purposes only and is not intended to nor should be relied upon as legal advice.

I also think you should consult with an attorney to help interpret the trust that your father created. As for assets that are not presently in the trust, your mother can either prepare her own will or trust or add those assets to your father's trust. Again, the best thing to do would be to meet with an attorney so that he or she can review the actual language from your father's will.

The best way to prevent problems when your Mom passes is for your Mom and you to sit down with a qualified estate planning attorney ASAP. They will be able to explain all of these issues and help get things straightened out.

IMPORTANT NOTICE: The above response is not intended to, and does not, create an attorney-client, fiduciary or other confidential relationship with the responder. Neither does it constitute the providing of legal advice or services or the giving of a legal opinion by the responder. Such a relationship can only be created, and legal advice and/or legal services provided, pursuant to a written agreement with the responder. Accordingly, no obligations of any kind are assumed with respect to any matter or question presented. It should also be noted that legal issues are often time sensitive and legal rights may be lost or compromised if you do not act in a timely fashion.