Legal Question in Wills and Trusts in California
Does a will have to be carried out?
A father dies with a will in tact. There are three brothers. The will states that all assets are to be divided three ways. One brother, prior to the father's death, transfered the house into his name (father said it was only for tax purposes). The brother then took out an equity line of credit (45,000.00) and a deed of trust ($35,000.00) on the father's(and his) home. All of the father's T-bills, stocks and bonds were cashed in and in some way, disbursed. The brother with the house and will states there are "no assets". Does he have to sale the house? Do the other brothers have any recourse?
1 Answer from Attorneys
Re: Does a will have to be carried out?
The transfer of the house to the brother will be presumed to be a gift in the absence of evidence to the contrary, and of course the father is free to make a gift whenever or to whomever he wants. The father's oral statement that it was for "tax purposes" may not be enough to combat the presumption that the transfer was a valid gift. In addition, the father is free to cash in his securities whenever he wants and give the proceeds away. The facts you have presented are not enough to demonstrate that the brother stole the home or the proceeds from the securities or received them in any unlawful way. Remember that a will is effective only for assets remaining in the deceased person's estate on the date of his death; he is free to give everything away before he dies if he wants. (This statement does not constitute my representation of you, nor is it an attorney-client communication.)
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