Legal Question in Wills and Trusts in California
Living Trust vs. Community Property
My mother married my step-father in 1980. He moved her into his home which he purchased in 1967. The house was paid off in 1997. In 1989 he drew up a living trust and placed the house in it as the ''asset''. In the trust, he has left $200k to my mother and the ''residue'' of the estate to his adult child from a previous marriage. I'm not clear on whether or not the house is to be sold and the $200k given to my mother from the sale with the remainder going to his adult child, or what? Also, does the house fall under the community property laws?
7 Answers from Attorneys
Re: Living Trust vs. Community Property
Your mother may have a right to more than $200,000 but you've got given enough facts under the situation to do the math. If you would find out what the rights of your mother are seek a good attorney versed in the family law or probate/estate planning law as the use of community funds for separate asset can be placed into two different legal theories to determine what if any percentage of the house your mother has a right to. there are numerorus areas of the law here and far too technical for you to understand given the question you have asked. Only a complete playing out of the fax to the attorney can really help you. No one can answer your question in any intelligible manner as it is written. If you wish to consult with the please feel free to do so. I'm in the San Francisco Bay Area at 925 -- 945 -- 6000.
Re: Living Trust vs. Community Property
I need to review the trust documents before I can answer
Re: Living Trust vs. Community Property
As noted by the other responses, the trust document will need to be reviewed to determine the answer to your question. Likely your Mom will own some of the house as her community property, but since your stepdad bought it in 1967, she likely does not own a full 50%. But other factors could come into play, such as if the character of the property was changed by agreement.
Please let us know if we can of any assitance.
Re: Living Trust vs. Community Property
It is possible that she could have a community property interest in the home. It is also possible that the step-father's intent was to compensate her for that interest by the $200,000. A lot will depend on the terms of the trust.
If she asserts her CP interests, she may be required to give up the $200K and only take the CP interest.
This is a sticky set of facts, which will require the review of the trust, where the money came from to pay off the house, etc.
Re: Living Trust vs. Community Property
It's hard for me to give you advice without reviewing the terms of the trust, the document that will govern the dispute. She may have a community property interest in the house but it depends on the facts. Your mother should consult a probate attorney as soon as possible. If we can be of assistance, please give us a call.
Re: Living Trust vs. Community Property
I'd have to know more, but as the others have noted, she may have a community property interest in the house. If she does, the trust terms may require her to give that up to get the $200,000, perhaps termed a "spousal election." She should meet with a probate/trust attorney to review the trust and the facts to determine what her rights are and whether she needs to take further action to exercise those rights.
Re: Living Trust vs. Community Property
Your mother may most likely have a community property interest in the house. We would have to review the trust and get additional information to properly advise you regarding all of your questions.
If you would like a no charge initial consulation and case evaluation, please e-mail me with contact information or call me at (818) 991-6664.
I have over twenty years experience in these matters.
Good luck and thank you for your inquiry.
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