Legal Question in Wills and Trusts in California
A out of date will vs. possession of property.
My Mother is terminally ill. I moved in her house 6 months ago to care for her. Her will, which was done in 1986, states that my brother and I split everything 50/50 and he was named executor. Last week my mother added my name to her savings account, checking account and I am the beneficiary on her annuity. Since I am living in the home as a permanent residence, does that give me possession if my name is added to the deed? My mother feels I should get what ever she has and by putting my name on everything makes it mine after her death? The will has not been revised and I am afraid my brother will make me sell the home for his 50%. I wish to continue living in it as I have a 12 year old daughter that I do not want to uproot again. We gave up our previous home to live here and don't want to risk loosing this one. It's paid for and my brother is not a ''nice'' man and would definitely demand us to move or give him 50% of the value. My Mom thinks my name being on all titles, etc. gives me possession of it and he can't do anything to gain it or the bank accounts. I'm not so sure?
Sincerely,
Will not fight back!
2 Answers from Attorneys
Re: A out of date will vs. possession of property.
First off you need to retain a probate attorney immediatly! From the sound of the facts, you will be headed for a costly probate proceeding to have the will executed. This can all be avoided by your mother creating a living trust in which case all of the assets will automatically be transferred upon death. As far as the house, etc. what would be created is a tenancy in common, in which case you own a 50% interest, and your mother would own a 50% interest, upon her death if she devised her 50% interest to your brother, he would become a tenant in common as well, with an equal right of occupany, and would be entitled to the fair market value of rent if you were using his 50% share. To avoid all of this you need to do a living trust ASAP!!
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Re: A out of date will vs. possession of property.
Whether or not everything belongs to you after your mother's death depends on how she adds your name to the property, annuity, etc. You can be added as a power of attorney (for the financial accounts), a joint tenant (in which case as the survivor you automatically inherit everything), or tenant in common (giving you a 1/2 interest). If you are really expecting a fight from your brother, I suggest you have your mother find her own attorney, take a taxi there, and sign a new will and trust (for income tax reasons, it would be better for you to inherit the house than to have your mother add your name to the deed now) and make sure that the attorney videotapes the signing. The new document should also include a "no contest clause." To make the "no contest clause" more effective, your mother should leave something to your brother. That way, he has something to lose if he contests the new documents.
If you can't get new documents done, I suggest you have plenty of other witnesses hear your mother say how grateful she is for your help and how she wants you to have everything instead of sharing it with your brother. It would be best if these witnesses heard her say that while you were out of the house. I wouldn't advise this route, but if your mother is to sick to sign new documents, it may be your best hope.
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