Legal Question in Wills and Trusts in California
My mother (and I) thought we were getting one thing with her estate planning, but after she recently died I learned that she did not get what she wanted. Can a life tenancy be granted along with an ownership interest in the property? We were under the impression that I would receive a life tenancy with 1/2 ownership in my mother's home. We ended up with a life tenancy (for me) and 100% remainder interest to my two siblings. My mother wanted me to receive her entire estate for helping her and I have several notes my mother wrote during the last two years of her life saying she wanted me to have everything, but the attorney says if I try to change it I will lose everything. I'm absolutely sick about the whole thing as I know my mother would be. The attorney kept telling us that my mother couldn't leave me her home because she wouldn't put her law firm through a lawsuit if my siblings protested. We were intimidated the entire time.
4 Answers from Attorneys
The attorney may not be entirely correct. Moreover, if you were actually involved in the meetings, there may be other issues at stake.
Call me at your earliest convenience so we can discuss this more thoroughly.
Your attorney is trying to cover up her malpractice. Were you present when your mother discussed what she wanted with the attorney [mother often make a promise to the best child in the family but when it comes down to putting it in writing they chicken out and give all the kids something]. Why would your mother care what happens to the law firm? In any case, they have malpractice insurance [that attorney might get fired though].
You do have problems as to the Will. It is assumed your mother read it before signing. How are you going to prove that the Will does not mirror her intentions? Do you have several people who she topld that she was gilving you a 1/2 interest? She could have just made you a joint tenant as to the entire property.If you throw the Will out, then assuming there is no living spouse it would be divided equally among her children. Your two sisters would insist on selling the house so you would end up with 1/3 the value of the house but no house to live in, versus currently where you get no money but can live in the house for your life [your sisters could not sell it without your express agreement].
She could have given you 1/2 of the house [but she might have had to report it as a gift and pay some taxes on it as it exceeds $10,000 per year] and a life tenancy in the other half, but that would also mean that she would have no legal right to live there without your permission.
Since you are, understandably emotional about the entire matter, go with an intelligent, calm friend to the attorney and ask her to explain again what would happen if you sue [why would you lose everything--not unless there is a clause saying whoever sued unsuccessfully gets nothing], why she wrote the Will as she did, did your mother read it, why would you mother not want you to challenge the Will. Then go home and figure out how much you lost because of the Will being incorrect; then contact several malpractice attorneys who also know something about Wills. Get an estimate of how much your case is worth and consider making a demand for that amount before retaining an attorney and having to pay 1/3 of the recovery as attorney fees.
Good luck.
I think you have a fair chance. Your notes are clear as to your mother's intent - which is the key. Find an attorney to represent you, or contact me if interested in my representation.
Best,
Daniel Bakondi, Esq.
415-450-0424
The Law Office of Daniel Bakondi, APLC
870 Market Street, Suite 1161
San Francisco CA 94102
http://www.danielbakondi.com
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It sounds like the attorney is trying to cover up his/her own malpractice. To give you a reasoned answer, however, I would need to talk with you further and review all of the documents. Please feel free to give me a call.
Jon Reich
310.478.2541
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