Legal Question in Wills and Trusts in California

Our only surviving parent (of my sibling and I) is leaving his home via a living trust to us two children, 50% each. Our very elderly father will soon run out of funds and will need to start taking equity from the home (which is mortgage-free and has no liens) for his living expenses. We are trying to find the best way financially and legally to get the equity out of the home for his living expenses.

So far we are considering two possibilities and would appreciate any comments or advice:

1) A line of credit. This would require at least one of us children (who have an income to qualify for a line of credit) to add our name to the current home ownership papers (which are in our father's name).

a) If only one of us is added to the deed, would this in any way alter or endanger the 50/50 provision made for the house in the trust? Someone told me that the home would then be owned by both the trust and the person whose name is added to the deed. If this is true, should we both have our names added to the deed to assure the 50/50 split when the house is sold, even if only one of us takes out the line of credit?

b) The home is the only asset in the trust. If one or both of us siblings are added to the deed, would the estate then need to go through probate?

2) A reverse mortgage. We have heard that reverse mortgages charge a large upfront fee. Our father may only live another year or two due to his advanced age, so in this sense we hesitate to get a reverse mortgage. On the other hand, even though it would cost a lot, it seems that it would eliminate the risk of complications, possible litigation and/or a family feud, which all parties want to avoid.

Thanks in advance.


Asked on 3/31/11, 1:28 pm

1 Answer from Attorneys

Aaron Feldman Feldman Law Group

There are serious tax disadvantages to taking title to your father's property during his lifetime and depending how you add your name to a deed you may be removing part or the entire house from the trust so that it will go to the child on the Deed rather than as a 50:50 split your parents intended. Another point to keep in mind is that you should make your father's care and quality of life the key decision factors without regard to how that might dissipate your eventual inheritance. If you plan on selling the house eventually anyway, a reverse mortgage might make the most sense. Is your father still the trustee? I think you should meet with a lawyer to discuss the specifics of your situation in greater detail. I would be happy to discuss this with you.

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Answered on 3/31/11, 2:49 pm


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