Legal Question in Wills and Trusts in California

Re: Property in husbands name only

It depends. Does he have a will? What does the will say about where his property is supposed to go. The fact that he owned the property before you were married means that it is his separate property to dispose of on his death.

If he dies without a will his property, including his separate property passes by the method of transfer called intestate succession and the property goes to who the State generally wants it to go.

Additionally, it is likely that, without a will his estate will have to be probated which means court involvement. One possible alternative is the creation of a living trust. However, this will depend on your and your husband's circumstances.

We would be happy to discuss this with you and your husband.

J. Caleb Donner

805-494-6557

Re: Property in husbands name only

If there is no will, as you indicate, the property would be transferred through intestate succession, which normally means you would receive part of the title to the property, and his two children would receive a part of the title.

A will or trust needs to be prepared, because probate can be very expensive.

It would be easier if you changed ownership of the property to joint tenants or community property with right of survivorship.

Re: Property in husbands name only

With a will (or trust), you and your husband can give your property to anyone you like.

Without the will or trust, the property is divided according to intestate succession. Under this, you receive all of your husband's community property (things you own together, or earned during the marriage) and a 1/3 portion of his separate property (property owned by him before the marriage). The remaining 2/3 of separate property is divided among his children--in this case, his daughter and son.

If that's not what he wants, and it probably isn't, he should have a will or trust prepared to avoid such a result. He can still provide for his children without giving away the house, but he must get it in proper written form.