My father remarried after my mother's death at the age of 74. He is now 90. The family home in California was put in a trust before my mother's death. His wife wishes to remain in the house after his death and claims she has 50% (sometimes 75%) of the home, 100% of his assets. Is that true?
A properly drafted Revocable Living Trust will (or should) protect the children of the surviving children of the first wife. That is not to say the actual trust does protect the children but it is a common concern when I draft a Revocable Living Trust. You will need to take both your Father's current trust and your Mother's trust (before she died) to an estate planning attorney and have them reviewed. We cannot give you an answer without reading the documents.
There are a lot of potential issues that could arise. One of the most common is that though your mother left protections for "her children" your father ignored those provisions and instead protected his current wife, often taking assets out of a protected trust. This can be an administrative nightmare.
Your best bet would be to speak with an attorney ASAP hopefully with your fathers consent (else you will have a hard time getting the trust documents). That way you can clean up any errors, misunderstandings, and issues before he passes away.
I will caution that fixing/reviewing the estate plan has equal chances of protecting your share of the trust and providing escape clauses that allow your father to exclude you from it. So proceed with caution.
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There is simply not enough information here to answer this question with any certainty whatsoever. If a trust was already created and funded, you must review the terms of that trust to determine who has rights under that trust. Regarding the second wife's claims you need CA counsel to advise you although it is true in most states that a surviving spouse has certain "elective share" rights. You have to have the trust you refer to reviewed and also review what will/trust would apply to your father and his current wife.
This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/
You need to have your father review his estate plan with his lawyer to make sure that it still provides what he wants it to. It is certainly possible that he would want his wife to have most of everything, in the event of his death.
It is also possible, if not likely, that even though the trust may have been executed before the marriage, that is has been amended, perhaps more than once, in order to reflect the current state of affairs.
The title to the assets will also have a large bearing on what happens. The trust controls only assets titled in the trust.
You certainly could have a mess on your hands, down the road. Your father is probably in a position to avoid some of that mess. But his wishes are what controls, and he may well want to provide for the wife, first, or perhaps only. The only way you can know for sure what he has set up is to have it reviewed by a lawyer. Your father is probably not going to want to share the details of his estate plan with you, at this point. So you may not have much you can do about this. At the very least, your father has set up his estate planning. That is more than can be said for the vast majority of the population.
I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your state. The law changes frequently and varies from state to state.
Here are the general rules in this area and the best thoughts without more information, such as reviewing the actual documents involved. First, since your father seems to be in CA, this is likely a CA legal issue and I therefore CA legal counsel would be best to consider the actual issues. Second, you state that the your father's home was transferred to a trust. A very key issues are the type of trust (revocable or irrevocable) and the terms of the trust. If the trust is revocable, it has probably already been changed and this is totally within your father's right to do as long as he is competent. If the trust was irrevocable, either because this is how it passed to your father at your mother's death through her Will or Revocable Living Trust or it was gifting by your father to such a trust, which is less likely as this would have been a much more sophisticated transaction with tax ramifications), then the trust would not likely allow your father to transfer the home to his newer spouse. But, even in this case, it is very possible that your father could have taken steps to do indirectly what he could not do directly and enable the home to pass to her, for example, by distributing the home to himself as a beneficiary, at which point he could do whatever he wanted to do with it. Also, most states, and I believe CA is one of them, provide a surviving spouse with a forced or minimal share of the deceased spouse;'s estate. While this forced share (somewhat different and known as a Year's Support in GA) can be elected by the surviving spouse, steps can normally be taken to avoid this forced share, and the necessary steps would depend on the specifics of the state law at issue. In GA, Year's Support is only payable out of the probate estate, so fully funding a revocable trust can avoid a Year's Support claim and/or a Prenuptial or Postnuptial Agreement could have her waive her forced share rights. However, at the end of the day, my best guess is that your step mother will get the home and any other of your father's assets if he either allows it to happen or does not take proactive steps to prevent it. Such is life. We are free to do with our assets as we choose for the good or the bad. If you can get a copy of the trust to which the home was transferred, then the actual facts in your father's case could be considered. Good luck.
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