Legal Question in Wills and Trusts in California

The error in your thinking is that you are thinking only of your mother's estate. When your mother put the title to the property in the children's name, then that created an estate for each of the children. So your predeceased brother had an estate at the time of his death, consisting of 1/5 interest in real property. What I don't understand is how your mother removed your deceased brother from title. She would only be able to do that while he was alive, by deeding his interest to the others or to someone else. When he died, his heirs had an interest in his portion of the property, which sounds like 2, from the facts that you have given. California has special rules, depending on whether the brother died with a will or without a will. I don't understand how you can refer to a living trust, because if your mother put the property into a living trust, the trustee of the trust would have been given title to the property, and not her children. So based on the information that you have provided, the trust is irrelevant, because the property is not part of the trust.

Chris - A lot will depend on what your mother did to put your now deceased brother "on title" to her home. If she actually recorded a deed to all of her children, including that brother, then that is something that she can't change on her own. Each child would own an interest in the house which would become part of their own estate when they died. If, on the other hand, she put the house in to a revocable trust and made the beneficiaries of the trust her children than she can change the terms of the trust any time she wants to. Your mother should sit down with an attorney sooner rather than later to review her assets, the manner in which they are currently held and her estate plan. That is the best way for her to make sure that her estate is handled in the way she wants it to be. If we can help, please do not hesitate to call me.

Jon Reich

310.478.2541

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Only an attorney looking at the actual documents can fully evaluate your mother's legal rights and the potential claims of these grandchildren. For example, it all children were on the deed and it wa recorded, then there may have been a legal interest in the brother when he died. On the other hand, if all children were named as joint tenants with right of survivorship, then when he died his interest in the property would pass to the surviving siblings on title. I urge your mother to see an attorney as soon as possible to sort this out, particularly as you also mention a trust and what you describe with the Deed is inconsistent with having a trust.