Legal Question in Wills and Trusts in California

Re: Family Eviction

You need some help. If your Mother transfers the home to you while she's alive. Then you have a possible tax problem in that you've received a gift in excess of $10,000.00 this year. The tax on the overage is 37% to 55%. The IRS may not pick it up but it's a potential problem. Your Mother loves your brother and that's a given. So live with it. Here's some ideas. Do a Family (Living , inter vivos,) trust with a spend thrift provision to parcel out some money to your brother as needed. A modern trust package has the trust, the summary of the trust, durable power of attorney for asset management, and power of attorney for health care, plus numerous forms, letters, and instructions as necessary. You and your brother would also be the beneficiaries of the trust. However, your brother should be made a beneficiary of a �spend thrift' provision. This would allow you to dole out some money to your brother as you see fit. Fund the trust by putting the house into it and any other investment instruments excluding any IRA and 401K plans. Have yourself named as trustee and have a trusted family friend or relative named as alternate trustee if you should predecease your Mother or die before your brother. Then as the trustee of the trust (which owns the house) serve your brother a three day notice to quit as a 'tenant at sufferance.' Then after three days do an unlawful detainer (U. D.) to have him removed. Beware that all this is going to really hurt your Mother. The emotional turmoil may hasten her departure. So you'll want to approach this aspect of the problem carefully. Whatever you decide to do about your brother you need to be in the power position as both the trustee and the power of attorney. These measures will avoid probate. There are times that a dictatorship is called for, and committees lose their usefulness. So you've got to get that power, and then administer it wisely. There may be a lot that can be done for your brother. But as long as he's comfortable in the house he will not change. However, be careful. He or some of his acquaintances may be desperate enough to attempt to hurt you. So act firmly but always be aware of your circumstances. I'll pray for you. I'm not one of God's favorite servants, however, my whispers to heaven may help. Don't take half measures.

Re: Family Eviction

I missed the part about you also owning the house. I assume you're on the title as joint tenant (JT), and there will not be a necessity for a probate for you to get title to the property. You should have the powers of attorney for your Mother I discussed earlier. Serve your brother with a three day notice to quit, and then an unlawful detainer (U. D.). You are a partner in the property, and you have the right to do this. However, your Mother has the right to rescind this. That's why it would be helpful for you to have and exercise the power of attorney from your Mother. Mother is still going to be troubled by all the legal problems you and your brother are going to have over the matter.