Legal Question in Wills and Trusts in California
Revocable living trust amendment
My father left his home in the care of the Trustee of his living trust stating that I would reside their indefinitely as long as I kept the property and home as he had left it , as well as paying the yearly property taxes .
The problem I am now having is that my brother was named as a joint tenant in the county records 6 years after my father's trust was completed . My father passed away in 2005 and never amended his trust to show that my brother was made a joint tenant .
Now , my brother is trying to evict me from my father's old home because he wants to renovate it and then move into it as his own home .
Do I have any ground to stand for defending my right to occupancy ?
I was under the impression that a revocable living trust had to be amended before any changes of this manner could be carried out .
Please help !
Sincerely ,
4 Answers from Attorneys
Re: Revocable living trust amendment
I would like to see the joint tenant transfer deed. Was it transferred from your "father as trustee of the trust" to your brother? Did your father know what he was doing? Did your brother get the gift through undue influence? Does the trust still own half of the house? If so, then your brother has only a joint tenancy interest in the house. I would like to see the deeds and the trust. If you'd like to set an appointment so I can review those documents, give me a call.
Sincerely,
Phillip Lemmons, Esq.
Re: Revocable living trust amendment
If your father transferred a joint tenancy interest to your brother, assuming that there was no fraud or undue influence involved at the time and assuming that your father had the necessary mental capacity at the time, then upon his death the property belongs to your brother and the recitation in the trust respecting the property is meaningless. If your father was not competent at the time of the deed to your brother, or assuming that he did so due to fraud, duress or undue influence, you can litigate to declare the deed void. However, it seems from your post that the property was never deeded to the trust. If that is the case, the property will have to go by will to the trust, assuming that there is a Pour Over Will, and that will have to occur through probate.
What a mess!
Re: Revocable living trust amendment
this is another example of self-help estate planning (by your father or perhaps by your brother) with unexpected (and likely unintended) consequences. in order to answer your question, the trust ageement, joint tenancy deed and more facts regarding your father's situation are needed.
Re: Revocable living trust amendment
Based upon what you write, it may very well depend on whether the Joint Tenancy Deed was obtained by fraud, undue influence, weakened mental capacity, or without intent to keep it outside the trust.
If the property is not in the trust, then the trust provisions described by you do not apply. If the property is in joint tenancy, then the pour-over will does not put it into the trust after death.
In short, the question may hinge on whether the property was in the trust, and if so, why it was taken out of the trust.
You really need to see an attorney to evaluate the above.
IF I can be of help, please do not hesitate to contact me.
Sincerely,
Kai H. Wessels, Esq.
(tel. 877-wessels)
The above is intended for informational purposes only, and is not intended to be relied upon as legal advice.
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