California Estate Planning Legal Questions

You do not give us enough information for us to give a correct answer. Is she on the lease or ownership of the place if it is not a rental, has or does she pay any rent, who is trying to force her out [his estate being probated or the heirs just acting on their own] and on what basis, has she been given a three or thirty-sixty day notice, what promises did he make as to taking care of her [Lee Marvin style non-spousal agreement], which state are you in, why is she not writing in for information herself [she knows the facts better than you do and what results she wants], etc.... Read More

Contact the local governmental agency to find out who owns the road. Even if you do not have any ownership interest, sounds like you have an easement [of necessity] to use the roadway which means he can not do anything to prevent you from using it. Speak to him to find out what his argument is why he has hindered your usage and why he thinks his friend can drive beyond his house. Tell him that if the situation is not immediately remedied you have no choice but to sue him and perhaps his friend. Start looking for an attorney to file suit as he obviously is not going to stop you from using the road.... Read More

Assuming your father is dead, in California the property would be divided into thirds, subject to the mortgage. Most bank loans have a provision that if the borrower dies, the loan can be called and made immediately due. So you first need to check to see what the bank is willing to do. If your sister has enough money to qualify for the loan [which I doubt as otherwise she would be living in her own home], they will probably allow her to take it over, but may charge some extra fees for the switch. Otherwise, you would probably have to sell it to pay off the mortgage and then split the profit three ways. Legally, all three of you are equally liable for the monthly mortgage payment. For ownership to pass, the estate must go through probate and during that time the administer of the estate is entitled to require your sister to leave or pay reasonable rent to the estate. Once the property three, none of the owners can be charged rent by the other owners. You would have the right to live there rent free. The fair way of handling it would be that she pays the entire monthly mortgage herself and the proceeds from the sale are divided into equal thirds with her keeping the house [on paper, she is getting much more as she keeps the house, but she is also assuming the debt for the house so the net result is the money assets are being divided equally]. That she has lived there rent free for 13 years does not give her any greater legal or equitable rights than your brother and you.... Read More

No, as being dead clearly falls within the two situations. But the successor trustee should not be involved unless the original trustee refuses or can not act. I assume you are the initial trustee so are wondering what happens if you die. Remember, only property in which the title of ownership has been transferred into the Trust is distributed according to the Trust, otherwise it goes by the person's Will. There are some good books by Nolo Press explaining Trusts that you should read in order to know what questions you need to ask.... Read More

You are never required to have a pre-nup and most couples never have one [not worthwhile unless one of you is bringing significant assets into a community property state]. States determine whether you are married by your having taken out and paid for a marriage license. A religious ceremony, whether American or not, does not make you married for civil authorities.... Read More

There is some additional information we need to know. The estate would have to go through probate for title to legally change. If there has been no probate, there can be no sale, as an executor's powers are very limited. In probate, an administrator can then sell off portions of the estate, etc. No one handling an estate can sell any part to themselves [unless perhaps they are the only beneficiary]. Fraud and conversion of assets have three year statute of limitations; the period for fraud does not start until you knew or reasonably should have known of the misdeed.... Read More

In California, a Will that contains no typing or form printing and just the handwritten words of the deceased, does not require any witnesses [the thought being that you can tell if she signed it by looking at her normal signature]. From what you have said, the Will was valid. I am confused as to your saying your mother was "on it". If your mother was named to receive half of the bank account and your aunt was the sole owner of the account, your mother would get half the account. I have to assume this was not the case because the probate would not be approved by the court if it was so and the attorney involved would have know n about her and that she might be a relative.... Read More

No, the will cannot be changed after death of the decedent. In certain circumstances the will can be changed by a court after a petition with notice to all affected people, all of whom would have the opportunity to oppose the change. When executor-child died, presumably his interest was already vested, and it would go according to his will, or if he had none, then according to the laws governing intestacy. Same with your step-father. Your step-father's tenth presumably would go according to his will, if any, or if none then one-third to your mother and two-thirds to his children.... Read More