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Do we need a trust?

San Mateo, CA |

We own our home jointly and have some stocks. Been married 29 years and have no children together but my husband has adult children from a previous marriage. My husband is terminally ill and said the property automatically goes to the surviving spouse. People have been telling me our house will have to got through probate or I might have to pay estate taxes.

Attorney Answers 5


  1. Best answer

    Mr. Corrigan is correct. The only difference is in California if property is held as joint tenancy, right of survivorship is automatic and does not need to be stated. No probate would be necessary. If property is community property, designation must be community property with rights of survivorship in order to avoid court procedures. As to accounts, same rules apply.

    No tax issues on death of a spouse when spouse survives and is the beneficiary.

    If your husband wants to ensure any property goes to his kids, a trust would be necessary. If your husband has capacity, you should at least speak with an estate planning attorney.

    The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein. While I am licensed to practice in New York and California, I do not actively practice in New York. Regardless, nothing said should be deemed an opinion of law of any state. All readers need to do their own research or pay an attorney for a legal opinion if one is necessary or desired.


  2. I would consider speaking to an Elder Law attorney in your area. I don't think the house would go through probate (as you will own it automatically) but you want to make sure tax and Medicaid planning have been considered.

    This is AVVO, a place for users to obtain general legal information to general legal questions. I am glad to help you in any way I can, within those limits. I wish to make clear I am only communicating with you for the sole purpose of exchanging such general information, and nothing more. It is not legal advice, which I can not provide because among other reasons I know few of the necessary details of your situation. I do not purport to represent you in any way, shape or form. Of course, if you would like to seek out my services, and if you are a NY resident, I will probably not put up very much resistance but representation would still necessitate a signed retainer agreement between yourself and I. Thank you.


  3. Look at the deed to the house and make sure it has you and your husband listed as joint owners with rights of survivorship (aka JOWROS). This description means that the survivornas between you becomes the sole owner upon the death of the first spouse. A deed overrides whatever a will says and if done as I directed (may already be this way) then it happens automatically without need of probate.

    My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained. Please click "helpful" or "best answer" if my answer added any value or add a "comment" if you have more info for me to help you get a better answer.


  4. The property does not automatically go to the surviving spouse. If there is a probate, all community property will go to the surviving spouse (if there is separate property - which is not likely in a marriage of 29 years unless he inherited something) some portion of that would go the his children. The best way to avoid this is to have trust wherein you are the successor trustee and sole beneficiary. The assets should then be transferred into the trust. I suggest that you consult with a good estate planning lawyer as to your options.

    DISCLAIMER: The response herein is not legal advice and does not create an attorney/client relationship or any right of confidentiality between you and the responding attorney. These responses are intended only to provide general information about perceived legal issues within the question. Each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer is not a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction and who is familiar with your specific facts and all of the circumstances.


  5. I practice in this area. If you did not do a prenuptial agreement, you should have done some estate planning along the way. If you have not, there may be time to fix this. A Trust makes sense here because the real property does not have to go through the probate expense and delay. The goal is to avoid probate litigation by the children from a prior marriage for their perceived share of the estate. I would be happy to meet with you both to talk about this.

    Eliz. C. A. Johnson
    JOHNSON LAW FIRM
    Post Office Box 8
    Danville, California 94526-0008
    925-362-1010
    elizabeth@johnsonestateplanning.com

    If you liked this answer, click on the thumbs up or vote it best answer! Thanks. Eliz. C. A. Johnson Post Office Box 8 Danville, California 94526-0008 Legal disclaimer: I do not practice law in any state but California. As such, any responses to posted inquiries, such as the one above, are limited to a general understanding of law in California and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as legal advice can only be provided in circumstances in which the attorney is able to ask questions of the person seeking legal advice and to thus gather appropriate information.

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