Legal Question in Wills and Trusts in California

Re: Who Gets the House? Wills & Living Trusts

THis depend on how the property i titled. You say they own it jointly, but is it with rights of survivorship or as co-tenants? It sounds like there may be some question as to this, based on what your brother-in-law is stating. The title could always be changed to tenants in common to avoid this problem. It is also possible that the mere creatioon of differing documents is enough to show that the property was intended to be as co-tenants and not joint tenants with a right of survivorship.

There is also the question of how your brother-in-law worded his trust as this may also provide some light on the situation.

The will post-dating the deed is irrelevant because of the title issue. Additionally, the creaton of a trust over a will is also irrelevant for the same reason. Although I do suggest having a trust over a will to avoid Probate, the reason would not be to resolve this possible issue.

Your best bet is to change the title of the property to reflect the brothers as co-tenants and then for each of you to have a trust (to avoid Probate) distributing each of your complete estates.

Our office specializes in this exact area of law, so if you need assistance, please feel free to contact me.

Regards,

Scott Linden

If you would like to discuss this matter further in a more private forum, please feel free to contact me directly at the email address provided by LawGuru or through our firm�s website located at PasadenaEstatePlanning.com

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Re: Who Gets the House? Wills & Living Trusts

The deeds, the trust and the will would need to be reviewed to determine that. Contact me directly.

Re: Who Gets the House? Wills & Living Trusts

Sounds like to title to the house is held by your husband and his brother as "joint tenants" which means that the first to die has his interest extinguished. Since it is extinguished upon his death there is nothing to be transferred by will.

What really has to happen is a transfer of his interest so that title is held as "tenants in common".

This is easy to accomplish. However, it SHOULD be done expeditiously.

Let me know if you want to set up a consultation.

Caleb

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Re: Who Gets the House? Wills & Living Trusts

If the house is held in joint tenancy, it would go to the surviving joint tenant. If it's held as tenants in common, the will would control. It sounds like you should have an attorney review the property deeds and advise you on an estate plan.

The trust is better than the will in that the after-death administration costs are in most cases less than with a will.