Legal Question in Wills and Trusts in California

Neither, you need to consult with an attorney, as your situation is more complicated than you think.

With regard to your question an number of questions would need to be answered. You stated that you owned the houses prior to marriage. In order for those assets to be completely separate property, you would have to have not used any community property to pay for the houses otherwise your spouse will have an interest in the properties. Therefore, you need to determine if you owned them outright or used community funds to pay them off or pay property taxes, etc.

If you passed away without an estate plan, the houses would most likely go to your spouse and children if you have any. For this reason, to accomplish passing an interest in the property, you will want to have an estate plan of some type (either a will or probably a trust). However, if you did use community funds to pay on the properties, then your spouse would have an interest in the houses at your passing.

Pursuant to community property law, if your spouse does have an interest in the house, you will be able to pass 1/2 of the community interest. If your spouse does not, you can pass them to whomever you choose.

I would recommend speaking to an estate planning attorney to best handle these issues as well as draw your attention to other issues related to wills and probate. If you would like, feel free to contact my office with additional questions and I can either assist you or help you find someone that would be able to assist you with your issues.

Best of luck.

Tom

Mr. Reid gave you a good answer. I write just to correct one mistake. Paying property taxes with community funds will not give the marital community an interest in the houses. Only payments that contribute to the EQUITY in a separate property asset give the community an interest. So, for example, if you pay the mortgage with current earnings during the marriage (which are by definition community property), only the portion of each payment that reduces the principal owed counts as a reimbursable community contribution. The interest part does not count. Similarly, if you pay a gardener out of community funds, no interest is acquired, but if you put on an addition or a new roof, it does.

Alot depends on how much you want to reveal to your new spouse. If she were willing to do so , the two of you could sign a marital settlement agreement (with independent legal counsel on both sides) and then sign a family trust accomplishing what you wish without going through probate...