Legal Question in Wills and Trusts in California

Re: Estate Planning

If you put your property in a trust, it will only protect those assets from liability of your wife to someone she seriously injures or kills if you give up ownership and control of those assets. Not such a good idea. Why don't you get you wife and yourself into conjoint therapy to work on your relationship, and your wife in AA. Call the AA intergroup and ask for help in making an intervention.

What is wrong with you that you are more concerned with protecting "our" assets than with protecting some poor innocent family from death or serious injury at the hands of your wife.

The appropriate way to protect assets from death or injury cause behind the wheel is to get a lot of insurance. The minimum of $15,000 is totally inadequate. But, if your wife is drunk when the injury occurs, the policy will not cover.

You, your wife and your family need help, and it is not legal help you need. If you cannot get your wife into treatment and into AA, then divorce her. Then you assets won't be at risk to her madness.

This is the honest advice based on 30 years of practicing law, 57 years of life, and 21 years of experience with AA.

I hope you find the strength to do the right thing and not look to avoid consequences. The person(s) your wife injures or kills won't be able to take action to avoid consequences.

Re: Estate Planning

First, I don’t want to take anything away from the sage advice of Mr. Roth. He obviously speaks from a great deal of experience.

During the course of the marriage regime, everything that has come into the marriage through the sweat of your brows (as opposed to, say, inheritance) belongs to the both of you. So, you can not unilaterally put your property, like your house and savings (which is what I presume you wish to protect), into a trust or otherwise convey it without her assent.

But even if she gives the "ok" to the trust, the goods are not necessarily safe. Someone looking to collect from either of you (whether in a lawsuit or as a creditor) could attack the legitimacy of the trust. A court could examine the creation of the trust and how it is carried out. Basically, if It’s a trust in form but not in practice (if it walks like a duck, quacks like a duck...) a judge could essentially nullify the trust and allow the assets to be attacked/attached.

For example: with your son as beneficiary, and you or your wife as trustee, it could be unassailable if it truly is held for the good of your son. That is, if it pays for whatever it is *he* needs or is entitled to according to the terms of the trust. But if you as the trustee (the one with the purse strings, holding it for your son) are more or less freely accessing it for your own upkeep, buying things for yourselves, paying your taxes, etc. (anything other than strictly for the benefit of your son), a court could very well (and probably would very well) see the trust as a sham, void it, and allow your creditors to ravish it. This includes the situation where you dole out money to your son, who then doles it back to you to pay your bills.

Or consider this scenario. The trust as you as the beneficiary, and your son as the trustee. It is possible to structure it so that it could be protected from creditors. But you'd need to structure it as a spendthrift trust, with strict limitations, scrupulously observed, on your access to the $.

Have you, alternatively, considered just increasing your auto insurance coverage? Of course, you asked a straightforward legal question, but I hope you will give some pause for thought to whomever your wife might happen to victimize.

I hope this has been helpful. Because what you may be aiming for (protecting assets via a trust instrument), it may be best to contact an attorney if you want to explore this option further.

Still, beyond the confines of this question, trusts are often preferable alternatives to plain old probate/intestacy. They give you the opportunity to put some real thought into what uses to which you'd like your property to be put after you're gone. Feel free to contact me, or any other qualified attorney, if you'd like to discuss matters further and weigh your options.

Regards,

J. Bryant