HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

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Latest post Mon, Jun 4 2012 12:55 AM by JOVIGAL. 22 replies.
  • Fri, Jun 1 2012 12:09 PM

    • JOVIGAL
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    HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

    Mother in law passed away in Jan 2012.  There are two adult sons, one is my ex-husband.  Father in law was in a Alzhiemer's care facility at the time his wife passed.  Older adult son was listed as exectutor of the trust and power of attny for my father in law.

    Prior to mother in laws passing my ex, the younger son, gave up his rental of 12 years to move in with the mother to care for her 24/7.  When she passed, the older son insisted that my ex pay him rent.  He hired a rental company but the lease was never signed.  My ex paid monthly rent up until and thru last month when the father passed away. 

    According to the trust, when both the mom and dad have passed, the trust states this:

    General Tangible Personal Property -To Spouse, Holographic Codicil, Children: I give all my jewelry, clothing, household furniture and furnishings, books, and other tangible articles of a household or personal nature, or my interest in any such property, not otherwise specifically disposed of by this will or in any other other manner, to my spouse, if my spouse survives me; but if my spouse does nott survive me, tben I give such property according to the hoiographic codicil that I intend to write. If no such codicil is in existence at the date of my death or to the extent that my general tangible personal property is not disposed of therein, I give said property to my children who survive me, in substantially equal shares as they may select on the basis of valuation. Ifnone of my children survive me, these gifts shaUlapse and pass as part of the residue of my estate.

    Now with both parent's deceased, the property becomes 50/50 between the two sons, with my ex still residing in the home.  Now the older brother is insisting that my ex still continue to pay him rent until the estate is divided and / or his share of the house is either bought out or the house is sold.  Nothing has been divided up yet.  Life insurances policies haven't even had the time to pay out yet.  All property remains in the home. 

    PLEASE PLEASE ADVISE.   

  • Fri, Jun 1 2012 12:48 PM In reply to

    Re: HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

    No need to post any particular segment in all bold-faced font in future (it's a bit harder to read).

    Not clear how you're involved in this given you refer to an ex-husband, but never mind.

    The estate is entitled to seek rent while the place is in probate.

    "According to the trust, when both the mom and dad have passed, the trust states this..."

    Well, what you've posted says that the trust dictates that the personal property go to the husband.  He survived her. 
    Please also note that what you posted as to do with PERSONAL property, not real property (home).  (Never mind it explicitly describes what type of property she's referring to, and that isn't real property.)

    It's also unclear from here whether this property is properly part of the trust, since most personal property aside from a car or bank account won't actually have a title/title equivalent.  If she had a pour-over will leaving personal property to the trust, ok (as far as I know).  It's also weird that a trust agreement would refer to a "codicil" and "residue of my estate."  (A trust and a will are two separate things.)

    "Now with both parent's deceased, the property becomes 50/50 between the two sons..."

    Well, not necessarily.  Her personal property/contents of house for instance became the father's property per the estate planning doc you mention.  (We also cannot know whether mom's estate debt is such that the personal property you mention should have been or should be liquidated to cover debt.  Same goes even if it passes to father's estate.)

    "Nothing has been divided up yet."

    Nothing weird about that; she hasn't been dead for years.

    "Life insurances policies haven't even had the time to pay out yet."

    OK.  Not sure what your question is here.

    " All property remains in the home.

    "PLEASE PLEASE ADVISE. "

    I trust you know that you haven't asked an actual question, so you may want to clarify your post.  Best not to expect folks to guess what it is you want to know.

    If your ex is confused about what's what, tell him that he needs to consult with a local estate-probate attorney.

  • Fri, Jun 1 2012 12:51 PM In reply to

    • Drew
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    Re: HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

    Laymans suggestion:

    You may not want tobe in middle of this?

    Not clear who owns home now or who is trustee................

    Perfectly unclear why  EX would pay "rent" to his older brother to live in family home if factually EX has an ownership interest in the home.  No sound basis for one brother to pay other brother anything UNLESS there is some other deal in place.

    Older brother may be 90% hot air.

    Now older brother may have a right to move in the home as well but thats not a issue you post.

    Not clear why EX paid "rent" to his brother earlier either.

    Now as an equitable issue  if brother #2 gets use of a valuable asset that is in some sesne sahred  50/50 with  brother #1   it makes sesne for brother #1 to ask brother #2 for a fee to grant brother  #2 exclusive use ---say up to 1/2 the fair market rent --but #2 need not agree ---#1 could move in as well or send over his choice of added roommate (if such was otherwsie legal )



  • Fri, Jun 1 2012 12:54 PM In reply to

    Re: HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

    JOVIGAL:
    Now with both parent's deceased, the property becomes 50/50 between the two sons

    AFTER probate on the will and trust.  Until that happens the ownership is still the estate which can legally collect rent.

    JOVIGAL:
    Now the older brother is insisting that my ex still continue to pay him rent until the estate is divided and / or his share of the house is either bought out or the house is sold.

    Sounds about right.  Your ex-husband is not an owner until probate says he is.

    JOVIGAL:
    Nothing has been divided up yet.

    Then he isn't an owner yet.  Once he is an owner then he no longer has to pay to rent what he already owns.

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • Fri, Jun 1 2012 1:26 PM In reply to

    • JOVIGAL
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    Re: HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

    In December, my son's dad, my ex husband, moved in to care and be there for his mom at his mom's request.  The dad had been placed in a care facility.  The mom had heart trouble and didn't like living alone.  She passed away Jan 2012.  The day she passed the older brother brought up the subject of rent. I was there.  She and I were very close.  She died at home. 

    Older brother hired a rental mgmt company.  Assigned the rent amount and had a lease drawn up.  The lease was never signed.  Older brother said the rent was to be put into the trust account for their father's future needs and care expenses.  He said that when their dad passed, whatever was in the account would be divided equally.  Older brother now wants to sell the house.  Ex either wants to buy out his brother or sell the house. 

    Questions is this, Now that the property is 50/50 since both parents have passed away, wouldn't rent be off the table until the disposition of the property is decided?  Since now the total rent would be going into an account to be distributed 50/50, wouldn't it make more sense for the ex to pay 1/2 the rent amount directly to his brother instead of having 1/2 the rent returned to him after dividing the estate up? 

    Thank  you for answering me kindly. 

  • Fri, Jun 1 2012 1:31 PM In reply to

    • JOVIGAL
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    Re: HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

    The document is entitled Will at the top and referred to as Trust in the contents.  This document hasn't been addressed as of yet.  Everything happened so fast that they are still getting their bearings and moving forward.

    As to how I am involved, my ex and I are still close and he asked me to ask.  My mother in law referred to me as her daughter.  I have known them since I was 14 and I am now 51.  As for being involved, technically I am not other than I am asked questions and if I don't know the answer I ask. 

    Older brother is well-to-do.  My ex is low income.  I would rather them be able to work this out but when I am asked a question I do try to find the answer out.

  • Fri, Jun 1 2012 2:00 PM In reply to

    Re: HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

    JOVIGAL:
    Now that the property is 50/50 since both parents have passed away, wouldn't rent be off the table until the disposition of the property is decided?

    No.  The property is not 50/50 until the will is probated.  That is what you aren't getting.  NOTHING changes until probate is started and the title/deed is passed.  Until that time any occupant of the dwelling that is required to pay rent continues to do so.

    JOVIGAL:
    Since now the total rent would be going into an account to be distributed 50/50, wouldn't it make more sense for the ex to pay 1/2 the rent amount directly to his brother instead of having 1/2 the rent returned to him after dividing the estate up?

    No.  That account will be used to pay estate debts and bills on the house until probate is settled.  What ever assets are left when probate is settled will then be divided.  Your ex is counting his money before it exists.  More than one person has thought they were "rich" when inheriting to find out exactly how much bills, estate taxes, and expenses can destroy an inheritance.

     

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • Fri, Jun 1 2012 8:54 PM In reply to

    • Drew
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    Re: HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

    IF the will has yet to formally probated then big brother has no offical powers past hot air. And it the trust is to own it but the trust formed by the will is not yet raised then there is no real trustee in place yet either

    Now if there was previously a lease in place while Mom was there then the may be a point that EX continue to pay the amount into Moms account or her estates account once one is set up BUT if there was no lease in place with Mom then brothers formal power to insist on rent is about the same  as the bartender at the corner bar may have--brother has no officaly power to insist upon rent and EX probably has no enforceable duty to pay rent .

    Now in a sense if EX puts $2000 in the pot and the trust says to split the pot 50/50 then EX stands to get his 1/2 back ? Don't count on that math--if big brother is trustee he is likely to apply the $2000 just to home expenses and claim the net is say $2.98 and EX get a lousy $1.49 back ---

    Were I EX I would not pay rent until there is an offical duty to do so. But then again I just might pay a token rent --why--because its easy for a trustee or executor in charge of the home to boot an invited guest that was there with Mom but its much harder to boot a tenant w/o observing all the steps required by state law.

    Brother seems prematurely assuming control and EX kid brother seems to need to learn to say no. and sort out the offical steps.



  • Fri, Jun 1 2012 8:57 PM In reply to

    Re: HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

    Drew:
    IF the will has yet to formally probated then big brother has no offical powers past hot air.

    SIGH.  No Drew.  Go back to the first post where the OP said this:

    "Older adult son was listed as exectutor of the trust and power of attny for my father in law."

    The older brother has COMPLETE legal power.  

    Drew:
    Brother seems prematurely assuming control

    No, brother has always had it.

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • Fri, Jun 1 2012 9:36 PM In reply to

    • Drew
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    Re: HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

    Not quite that clear--the references seem to refer a trust formed as part of a will and we are not even sure the will was probated and letters administration issued.  POA is now moot.

    once the trustee is properly in control I agree he has powerto do whatever he is empowed to do under the trust  and if that makes him the EX landlord he can follow due process to evict the tenant or neioate a lease if possible and/or sell the place if thats proper under the trust.

    What if anything does the will or trust say to do with real estate.



  • Fri, Jun 1 2012 10:31 PM In reply to

    • JOVIGAL
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    Re: HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

    Thank you for responding.  Im just going to post the document so that you can see it.  Mark is the older brother and Jim is the younger brother.

    General Tangible Personal Property -To Spouse, Holographic Codicil, Children: I give all my jewelry, clothing, household furniture and furnishings, books, and other tangible articles of a household or personal nature, or my interest in any such property, not otherwise specifically disposed of by this will or in any other manner, to my spouse, if my spouse survives me; but if my spouse does not survive me, then I give such pr... the terms a holographic codicil that I intend to write. If no such codicil is in existence at the date of my death or to the extent that my general tangible personal property is not disposed of therein, I give said property to my children who survive me, in substantially equal shares as they may select on the basis of valuation. If none of my children survive me, these gifts shall lapse and pass as part of the residue of my estate.

    Dividing Tangible Personal Property -Executor to Decide: If my children cannot agree on a division of the tangible personal property, the executor shall divide it among them on any basis that the executor, in the executor's absolute discretion, deems equitable, having due regard for my children's personal preferences.

    Residue -To Inter Vivos Trust: I give the residue of my estate to the trustee then in office under that trust designated as the **** FAMILY TRUST, executed earlier this day, by myself and my spouse as settlors and co-trustees, as part of the trust~ to be administered and disposed of in accordance with the provisions of the trust, including any amendments made to it before or after my death. If for any reason this disposition is inoperative or invalid, or if the trust referred above has failed or has been revoked, then I give the residue of my estate to the trustee named in the present provisions of that trust agreement to act after my death, to be administered in trust as provided in the present provisions of that trust agreement which, for such purpose, I incorporate by reference into this Will.

    Executor: I nominate as executor and as successor executors of this will those named below. Each successor executor shall serve in the order designated if the prior designated executor fails to qualify or ceases to act.

    First: ROBERT M. ********

    Second: MARK B. ******

    Third: JAMES L. *******

    Bond -Waiver: I request that the court not require bond of any executor nominated in this will.

    Independent Administration -Permitted: The executor may administer my estate under the California Independent Administration of Estates Act.

    SELL ASSETS: The executor shall have the power to sell, with or without notice, at either public or private saIe, for cash or terms, any property of my estate as the executor, in the execuror's reasonable discretion, considers necessary for the proper administration and distribution of my estate.

    Distribution of Property -In Kind, Non Prorata, at Date of Distribution Values: The executor shall have the power to determine what property of my estate shall be allocated to the shares, parts, or bequests in selecting property for distribution or satisfaction of any bequest. Further, the executor may satisfy any general pecuniary bequest, except when specifically directed otherwise, by cash or in kind, or partly in each, with property distributed in kind valued at the date of distribution.

     

    NO CONTEST, DISINHERITANCE, DEFINITIONS

     

    No Contest -Contestant Disinherited: If any beneficiary under this will in any manner, directly or indirectly, contests or attacks this will or any of its provisions, any share or interest in my estate given to that contesting beneficiary under this will is revoked and shall be disposed of in the same manner provided herein as if that contesting beneficiary had predeceased me.

    Disinheritance -General: Except as otherwise provided in this will, I have intentionally omitted to provide herein for any of my heirs, or persons claiming to be my heirs, living at the date of my death, whether or not known to me.

    Survivorship Requirement: For all gifts under this will, I require that the beneficiary survive me for thirty (30) days before entitlement to such gift.

    Dermitions: As used in this will, the following terms shall mean:

    (1) "DescendantsIt shall mean lineal descendants in any degree of the ancestor designated and shall include persons adopted during minority.

    (2) The masculine, feminine, or neuter gender and the singular or plural number shall each include the others whenever the context indicates.

    (3) Clause headings are for convienence only and shaIl be disregarded when construing this will.

  • Fri, Jun 1 2012 10:39 PM In reply to

    • JOVIGAL
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    Re: HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

    I omitted the last names.  Thank you in advance for your replies.  Again, I loved these people dearly.  They were my second mom and dad.  Please don't be hard on me for asking questions or posting.  I have no agenda here other than to help out my son's father try to make sense of all of this.  He would much rather have his parents back then to be having to have lost them and go through this.  He has no agenda. He doesn't stand to get "rich" as someone posted earlier.  He simply gave up his rental to move in and help and now is worried about whether or not he needs to walk away from the home or stay and pay or... ??

    He called me for answers and I am simply turning here in hopes of giving him some clarity.  He has a call in to the attorney that drew up this document.  That call won't be returned until Monday when the attorney is back in his office.  He doesn't have the money to retain an attorney to help him with all of this or he would.  He simply did the right thing when his mom asked.  His brother said he would just put her in a care facility also if someone couldnt move in and be there with her. 

  • Fri, Jun 1 2012 10:42 PM In reply to

    • JOVIGAL
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    Re: HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

    Oh and I forgot to mention that older brother's wife is a real estate agent.  The attorney the older brother consulted with told him to "butter up his brother's hand" and "make it worth his while" to have his wife list the home for sale.

  • Sat, Jun 2 2012 11:37 PM In reply to

    • Drew
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    Re: HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

    Laymans guess: 

    1 Still not clear if this will has been probated and letters of administration issued to the top most named person? If this has not been done yet then the "executor" is not yet the official anything.

    2 The rules about what to do with the house are in the trust and you need to address that part of docuement.  Real estate is not tangible personal property and it falls into the next paragraph down as going over to the trust.

    3. If there was never a real lease in place (oral or written) then there is so far no duty to pay rent!

    4. The trustee, one he formally gets that role might well proceed to evict any tenant in the home --but thats not necessarily a quick and easy task. (Caution -- it may be easy to boot a "guest" from said home. ) And I don't think the trust becomes "alive "until at least the will is probated and letters administration issues.

    5. Suggestion: the tenent would be wise NOT to move out or agee to anything until he knows exactly where he stands --and standing inside the home may offer more options than being outside.  The trustee/landlord can huff and puff all day long but it really doesn't count until court says it does.

        PS at least so far there is no duty for the tenant to pay any water, power, gas or any other bills unless he unwisely put them in his name.

    I'm not a lawyer nor in CA but I've been a LL for a few decades and muddled thru an intrafamily dispute over real estate or two--and getting a stubborn tenant/occupant out can take a good long time --and so far we don't even know what the trust says to do.

     

     



  • Sun, Jun 3 2012 11:02 AM In reply to

    Re: HELP! TRUST / WILL ISSUE ... EMERGENCY PLEASE

    JOVIGAL:
    He simply did the right thing when his mom asked.  His brother said he would just put her in a care facility also if someone couldnt move in and be there with her. 

    This is admirable and a wonderful thing to do but once they passed it does not grant him additional rights LEGALLY as far as the estate is concerned if the parent(s) did not address that in the will or trust.  Since he is no longer providing care then living there for free is not an option.  The rent free part was in exchange for the round the clock care.  

    The problem I see is regardless of the lease being signed your ex was paying rent.  The law requires that this continue until probate is settled as that rent is an asset of the estate regardless if your ex is going to inherit from it.  Parent(s) were also smart enough to put a clause in there that if you object to their terms you get nothing so that there is no fighting about this.  Regardless of what imaginary scenarios and suggestions that skirt the law based on out of date knowledge of other states that you are given the older brother has always had power of attorney to act on behalf of the parent(s) and estate and is not the executor.  Based on what you posted it looks like he can enforce this rent issue and if your ex can't afford an attorney he stands to lose a lot more.  

    Look at it this way, even if he moved out he would have to pay rent somewhere.  At least in this instance he gets to stay where he is and is likely to get a portion of his money back when the estate settles.  

    JOVIGAL:
    The attorney the older brother consulted with told him to "butter up his brother's hand" and "make it worth his while" to have his wife list the home for sale.

    Nothing illegal about that.  Basically they would be going a "cash for keys" deal which landlords and banks do all the time.  They find out how much money it takes to get your ex to agree to vacate and sell.  If your ex has the cash to buy out the other's interest in the home he is free to do that as well.  It is a free market.  The will you pasted is clear though:  if they can't agree it gets sold.  It is in your ex's best interest to work this out to everyone's agreement otherwise the property will be sold anyway.  If he can't buy out the rest of the home then it will be sold and he wil be moving and paying rent somewhere.  

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

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