QUESTION
When legally separated does a will take precedence over a trust in community property?
Asked on Feb 14th, 2017 on Estate Planning - California
More details to this question:
Separated spouses own home and other community property. Husband terminally I'll wants half home equity to go to children upon sale of the home.
3 ANSWERS
Civil Litigation Attorney serving Ventura, CA
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The Law Office of Robert I. Long
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If you own the property, the Will takes precedence. If the property is in the trust (e.g., titled in the names of the trustees), then the trust controls. If there was a stated intention to transfer it into trust, but it was never carried out, or there was a defect in the attempted transfer, then it is an open question in California; lots of cases going both directions.
Answered on May 04th, 2017 at 8:17 AM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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Generally, a will does not govern assets in a trust. However, husband probably can revoke the trust.
Answered on Apr 27th, 2017 at 6:41 AM
If title to the home has vested in the Trust, then it is no longer part of the Will or probate. Property in a Trust does not have a stepped up basis upon the death of one of the people creating the Trust. You need to figure out what method of ownership is best for everyone. Half of his community property is yours. You probably should speak to a probate attorney to find out what may be best.
Answered on Apr 27th, 2017 at 6:41 AM