Father's wife is hiding his will

Dear Len & Rosie,

My father died three weeks ago. He spent a lifetime saving money. He was married three times and had four children. He was also married to his third wife when he died. She says there is a will (although I think that there may be a trust) but she will not give me any information at all until she has a lawyer read it and explain it to her. She says she did not like the lawyer who prepared these original documents for my father. I’m worried about her stealing my inheritance.

Sally

If your father died with a will, and his third wife has it, she can’t keep it to herself. Probate Code section 8200 requires her to either file for probate or deliver the original will to the Superior Court in the county where your father resided on his death. If she’s not named as executor, she also has to mail a copy to the person named as executor in the will. She has thirty days from your father’s death to do this. If she doesn’t, you could petition the court to order her to cough up the will.

If there is a trust, it’s different. The successor trustee, whoever that is, is supposed to notify all of the beneficiaries and your father’s natural heirs (his children) of the existence of the trust within sixty days of his death under Probate Code section 16061.7. The notice also informs you of your right to a copy of the trust document. This only applies, however, if the trust became irrevocable as a result of your father’s death. If he and Wife #3 made a trust together that gave her the right to amend or revoke it after his death, then she’s not obligated to give you a copy.

It is important for you to understand that regardless of what your father’s will or trust says, his wife will inherit anything he owns in joint tenancy with her, and any accounts for which he named her as a beneficiary.

So what do you do now? First, get some information. You can obtain a copy of the current vesting deed (the last recorded deed in the chain of title) to your father’s home from either the County Recorder in the county where the property is located, or from a title insurance company. If there’s a trust, the deed should show that the property is in his name, or in his and his wife’s names, as trustees of the trust. If the deed is in joint tenancy with her, then it’s her home and there’s probably nothing you can do about it.

If the home is in your father’s name alone, then it’s subject to probate, which is good news for you, because your stepmother can’t transfer title without a court order, and you’re entitled to notice of any probate or spousal property petition she files in the probate court.

If another month passes, and she still won’t tell you anything, see a lawyer and have him or her write a vaguely threatening letter spelling out her responsibilities. It’s likely to be enough to get her into the office of an attorney who can make sure she does everything right.

Len & Rosie

How a Revocable Living Trust Works

Dear Len & Rosie,

Last year my wife and I bought a revocable living trust. We own a modest home, some stocks and bonds, three bank Certificates of Deposit, and two insurance policies that are payable to the trust.

I am the only trustee, because my wife, Gloria, was never all that good with handling money. When I die, my eldest son, Josh, will be the successor trustee. He has promised to take care of his mother after I am gone.

I want to know how it is supposed to work. How does Josh become trustee when I am gone? What if I lose my mind and wind up in a Nursing Home? How do my stock broker and the banks know that Josh is supposed to be the trustee. They might think he was some punk coming in off the street to rip us off.

Reuben

Dear Reuben,

You bought your trust from a trust mill, didn't you? Most of the time when clients who already have a trust come into our office with questions such as yours, we learn that they purchased their trust from a trust mill that didn’t even bother to explain how their trust is supposed to work.

According to your letter, you are the sole trustee and your son is the successor trustee. He will become the trustee upon your death, resignation or incapacity as directed by the language of your trust. Because we do not have a copy of your trust, I cannot tell you exactly how this is supposed to happen. This, however, is the way most revocable living trusts work:

If you die or resign, Josh would become trustee automatically. All he would need to prove he was trustee is your death certificate or your letter of resignation as trustee. There will be other documents needed to transfer specific assets such as your home and accounts to Josh as trustee.

But if you become incapacitated, it can get sticky. The question is this: Who decides whether or not the trustee has become incapacitated? Many trusts are written with provisions that one or two doctors can determine that the trustee is no longer able to handle the job. Other trusts may require the successor trustee to petition the Court for a determination of incapacity. Some trusts have no provision for the removal of a trustee, which means the successor trustee or the beneficiaries of the trust may have to ask the court to intervene. In any event, your son will have to talk to doctors and lawyers if you become incapacitated.

The easiest way to handle the issue of incapacity is to avoid it. Ideally, you should resign as trustee before you become incapacitated. Or, you and your wife could amend your trust to appoint your son as co-trustee and give him the authority to act alone. This way, if anything happens to you, he already has the ability to take care of things for you and Gloria. Of course, you must really trust your son to give him that kind of power over your property while you are still alive.

What you should do is contact the trust mill that wrote the trust for you and request an explanation. If they are not much help, and they probably won’t be, then you should consult with a local elder law attorney to review your trust.

Len & Rosie