Q&A: What to consider when deciding how to bequeath your home

Dear Liz: I’m at 74-year-old retired woman living in a completely paid-off condo in California. I hold title in my name only. I would like to add my partner of 20 years and my married adult daughter to my home title so they will not have to go through probate if something happens to me. What would be the easiest way to do that? Someone told me a quick deed to each person giving them a third of the condo. I want it as joint tenancy so the condo would just go to the survivors. My parents always held title with my brother and myself. Do you see a problem with this?

Answer: The “quick deed” to which you refer is probably a quitclaim deed, which would transfer your entire interest in the property to someone else and possibly create gift tax issues. That’s not what you want.

Another option is a revocable transfer on death deed. Like many other states, California now offers this option so that real estate can bypass probate. You would retain ownership of the condo until you die, when it would pass to the people you designate.

But please think carefully before bequeathing a home to two people, especially two who aren’t related or married. What if your daughter needs to sell the house to raise cash and your partner doesn’t want to move? What if your partner needs to remodel the home as she ages but your daughter refuses to share in the costs? Would one have the wherewithal to buy out the other?

Another way to avoid probate would be to create a revocable living trust that allows your partner to live in the home until her death, said Los Angeles real estate attorney Burton Mitchell. The property then could be transferred to your daughter. It may not be the right solution, especially if your partner and daughter have similar life expectancies, but it’s one of many you should explore with an experienced estate planning attorney.

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Q&A: Stepmom alters terms of dad’s will

Dear Liz: My father recently passed away and his will named my stepmom’s daughter as executor along with my brother. My stepmother just informed my brother that she removed him from that role, telling him it’s easier to just leave her daughter as the executor as she lives much closer. Is this legal to remove him after my father’s death? The rest of his five children have not been able to see that will.

Answer: Your stepmother doesn’t get to alter the terms of your dad’s will after his death. As mentioned in a previous column, a probate case should be opened in the county where your dad died and the will is among the paperwork that should be included in that case. It would become public record at that point so you would all be able to read it.

Your stepmother’s unwillingness to play by the rules indicates that you may need some legal help to make sure your dad’s wishes are carried out. The five of you should consult a probate attorney.

Q&A: Naming co-executers

Dear Liz: Is it legal for my parents to appoint me co-executer of their estate, along with my sister, without asking me first if I was okay with this, and keeping me as co-executer after I told them I do not want the responsibility? My sister is more intelligent and competent than I am and would do a better job of this by herself.

Answer: Your parents can name pretty much anyone they want, but that doesn’t mean you’re legally obligated to accept the role when they die. You’ll have the right to decline.

If your parents don’t name an alternate, your sister may be allowed to serve on her own or another executor may be appointed by the court, depending on how the will is written.

Obviously, your parents are being short-sighted by trying to force you to serve when you’ve made your feelings clear. Being an executor can be a time-consuming, complex and often thankless task that shouldn’t be foisted on anyone who’s not willing. If they don’t trust your sister to function alone, they should name someone else—and get that person’s permission before they do. It’s smart to name an alternate or two besides, in case their choices also decide they don’t want to serve.

Q&A: Amending a living trust

Dear Liz: My husband and I had a lawyer draw up a revocable living trust and a pour-over will six years ago. We need to amend a couple of areas, and I found it could be done with a form from a self-help legal site. Also, we need to add our home into the trust. My husband doesn’t want to use a lawyer. Can we legally do the amendment and addition of the home without a lawyer?

Answer: Sure. But your heirs may pay for any mistakes you make.

The big red flag is that you haven’t transferred your home to the living trust, even though you’ve had six years to do so. If it’s not in the trust, it will be subject to probate, the court process that the trust is meant to avoid. You need to be extremely diligent if you’re going to try to create a do-it-yourself estate plan, and you’ve already proved that you aren’t. All you’ve done is undermine the estate plan you paid for years ago.

Amending the trust, and having a lawyer help you transfer your home into it, probably will cost a fraction of what you paid originally. It also would give your attorney an opportunity a chance to review the documents in case other changes need to be addressed. A relatively small investment could pay off in peace of mind that the job has finally been done right.

Q&A: Clash over the state of their mother’s estate

Dear Liz: My husband’s mother passed away in January. His younger sister was executor of the estate. His mother had investments of close to $1 million prior to 2008. She supposedly lost half her investments with the downturn. When she passed away, my husband’s sister said that there was nothing left in the estate. What documents can he ask to see in order to make sure the estate is totally depleted? There wasn’t even a will shown to him.

Answer: If your mother-in-law had a will, or if she died “intestate” — without any estate planning documents — the sister would be required to open a probate case to settle the estate. Probate proceedings are public so your husband would be able to see an accounting of what’s left.

If your mother-in-law had a living trust, the sister wouldn’t have to open a probate case but she may be required to provide trust documents and an accounting of the estate to beneficiaries and heirs. The exact rules depend on the state where your mother-in-law died.

If the sister balks at providing this information, your husband may need to take her to court. He’d be smart to consult an attorney familiar with the relevant state’s laws.

Q&A: How to make sure your money-distribution wishes are followed after you die

Dear Liz: My first husband died when my oldest child was 1. I remarried and had another child (they’re 5 and 3 now). My husband and I prepared a trust in which I have him and my sister as beneficiaries of my assets. But my husband regrets that he is not the only beneficiary.

My argument is that if I pass away and he remarries, I want my oldest son (not his biological son, nor has my husband adopted him yet) to get what I saved for him, and that my sister will make sure this happens. What would you recommend? Should I have him as the only beneficiary?

Answer: No. But your sister probably shouldn’t be a beneficiary either, given your aims.

Any parent who wants to get money to a child should do so with a properly drafted trust, rather than trusting someone else — even another parent — to “do the right thing” by the child. All too often, they don’t. A new spouse, a change in financial circumstances, ill will or basic selfishness can tempt people to justify raiding funds intended for others.

A better way to benefit your children is to set up trusts to receive the money. You can name your husband as the trustee for the younger child and name your sister as the trustee for the elder. Trustees have the legal responsibility to act as fiduciaries, which means they have to put the beneficiaries’ interests first.

You can either create these trusts with your will or they can be part of your living trust if you live in a state with high probate costs, such as California. The advantage of probate is that the court can provide some oversight of the trustee, but that typically involves some additional costs. Your estate-planning attorney can offer guidance about which approach may be best for you.

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Q&A: Fiduciaries can help with estate trusts

Dear Liz: I enjoyed your recent column about spendthrift trusts. You’re right that when parents assign the job of trustee to one sibling for the benefit of another sibling, it creates a hazardous situation that often results in a court battle. The appointed professional trustee should be a neutral party. You recommended a bank or trust company to fill the bill.

However, there is a third and often better option: a licensed professional fiduciary. There are about 600 in California. We are independent fiduciaries licensed by the state to manage clients’ assets in trusts and estates.

Professional fiduciaries will take the smaller trusts and estates, since banks and trust companies usually require a minimum of $1 million to $2 million under management before accepting a trust or remainder estate. Banks and trust companies also typically charge fees based on the amount of money under management, whereas California Licensed Professional Fiduciaries normally charge on a time-incurred basis.

Fiduciaries also give the beneficiary an annual accounting. A case I have now came to me when the sibling trustee failed to account for money spent for nine years.

Answer: Thanks for highlighting this option. Licensed professional fiduciaries aren’t available everywhere, but certified public accountants also can serve this function. The attorney who drafts the trust may have recommendations.