Legal Question in Wills and Trusts in California

Re: Title to property

If the property is all community property (i.e., property purchased with money earned during the marriage), then you can hold it as community property or as joint tenancy with your spouse. If you hold it as community property, and you die, your spouse will need to probate it, but there is an abbreviated probate procedure for community property. If it is held as joint tenancy, no probate would be necessary. On the other hand, there is a tax advantage to holding property as community proeprty, because all built-in capital gains will be eliminated at the death of the first spouse to die. You need to weigh this against the one-time exclusion for capital gains from a principal residence which is available to persons over 55.

However, you will still need guardianship provisions for your child in the event both you and your spouse die. These can be set forth in a will. The will can also contain a testamentary trust which will prevent your child from receiving his or her entire estate outright at age eighteen.

Alternatively, you can hold your property in a living trust, which presents many advantages because it will prevent probate (assuming all property is in the trust), and has some estate tax advantages if your total marital estate (including retirement assets and life insurance proceeds) is over $1.3 million.

(This statement does not constitute my representation of you, nor is it an attorney-client communication.)