Legal Question in Wills and Trusts in California
My Mother die 3 years ago. her will divided her assetts 50/50 between my sister and I.My sister is the trustee. I found out recently that my mother sold a home and bought my sister a home while my mother was still alive. Does that count against my sisters 50% share?
2 Answers from Attorneys
Your question is essentially asking if your mother gave an advancement of inheritance to your sister by the gift of the home during your mother's life. To answer that question, you will need to look to the terms of the Trust. It is quite possible that your mother intended to simply make a gift of the house to your sister. If the Trust discusses advancements and that asset in particular, you probably have a better case that it was an advancement. Without that language, you may very well have a hard time proving that the house was more than a mere gift.
I don't know why Mr. Reid is talking about trusts, when you mention a will and don't mention a trust.
A specific, general or demonstrative gift in a will may be statisfied in whole or in part by an intervivos transfer from the testator to the beneficiary after execution of the will, if the testator intends the transfer to have that effect. A testator is the person who drafted or requested a will to be drafted, in this case, your mother.
To determine if the gift is satisfied, the specific terms of the will need to be looked at. For example, if your mother stated in the will that she wanted the house to go to your sister, and subsequently deeded the house to her after executing the will, most attorneys would say that the gift of the house has been adeemed by satisfaction and extinction. But if she was supposed to get $400,000, and received a house, more facts will be needed that show your mother's intent.
Probate Code section 21135 rquires that either the testator's intent be expressed in a contemporaneous writing stating the gift is to be deducted or is in satisfaction, the donee acknowledge that it is in satisfaction of their rights under the will, or the will provides for deduction of the lifetime gift.
Without written evidence, an inter vivos gift does not operate as a satisfaction under California law.
With that said, you should probably have the will and any relevant documents reviewed by a competent attorney.
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