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Elizabeth Powell
Elizabeth Powell, Family Law Attorney
Category: Family Law
Satisfied Customers: 127
Experience:  Washington State
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My mother signed an irrevocable living trust deading her ...

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My mother signed an irrevocable living trust deeding her property (home) to my sister. My mother passed away on 12/26/2008. A letter from her attorney will be sent to all of her children. Can we, the rest of her children contest this? My mother was not well, for nine years and was verbally abused by my sister (the beneficiary) for these years. I believe she was not of sound mind, and was pressured and threatened by my sister to put her as the beneficary. witness testimony can be provided as to the incidents of abuse. My father is the surviving spouse, but my mother left him out of the will. He still lives in the home with my sister. He consulted an attorney, and was advised since my mother inherited the property after they were married, the only way he could benefit is to divorce my mother. He chose not to. He is now under the threat of being evicted by my sister. We want to contest the will for him, so he can have a place to stay.What would the cost be?
Submitted: 6 years ago.
Category: Family Law
Expert:  Elizabeth Powell replied 6 years ago.

I'm thinking you meant Dec 2007? What a bad time to have such a loss.

You need to run this fact pattern by a probate, trust and estate attorney in the jurisdiction where your parents were domiciled at the time of your mother's death. The probate laws of that place will control what happens.

. A spouse cannot be disinherited by operation of law. Your father cannot divorce your mother, he is a widower now. And what you are proposing is called a will contest - that is when you claim that there was some irregularity about the making of the will that influenced the disposition of the testator's property that they might have done differently but for someone's undue influence. I can't tell based on what you have related whether you have sufficient evidence to prove that there was something irregular going on. I'm not trying to dissuade you - I simply can't tell.

You might want to start with the attorney who drafted this will/trust instrument in the first place. They can at least answer your basic questions accurately. I don't think that the family law attorney whom you spoke with explained what was happening very well.

Another thing that happens is the testator/grantor makes a trust, but forgets to transfer the deed to the real property to the trust. When that step is omitted, the property is not owned by the trust. Please know that California has one of the toughest probate codes in the country, chances are Montana is a lot more forgiving and less expensive to deal with.

Hope this helps. XXXXX XXXXX

 

Customer: replied 6 years ago.
Thank you for your advice. I will start looking for a local attorney to help in this matter. I wanted to clarify that my father consulted with the attorney before my mother passed. Is there a time limit restriction in california to contest a will? I don't trust the lawyer that drafted this will, since my sister hired him. In fact I don't think this lawyer trusted my sister either, since he returned by himself to speak to my mother alone with out my sister present. It's sad but yes, witnesses will state as to the abuse b y my sister to my mother. She had stated twice that she feared my sister.
Expert:  Elizabeth Powell replied 6 years ago.

There is no restriction or statute of limitations on a probate. That is what starts the clock ticking. But if your mother didn't live in CA, you don't want a CA atty - you want an atty where she was domiciled at the time of her death. Once the probate is opened if you want to contest the will you will want to move promptly.

I have had people come in with one wanting me to draft a will for the other. I have gently made the other person leave my office so I could talk with the proposed testator, figure out what they really want, and the answer was a complete shock once. I had another client whose housekeeper had had her sign a living trust leaving her entire estate to the housekeeper, which was not what the client wanted. It is horrible. The attorney who drafted this did the right thing by having your sister leave the office so he could talk privately with your mother, but I wonder if your mother shared her situation with the lawyer candidly, or if she glossed over what was happening to her.

Depending on the timing, yes it could have been undue influence. Please be sure that you talk with the lawyer who drafted this, whether you hire him to do the probate or not. And the probate needs to be where she was domiciled, and if I were you I would do my level best NOT to have it probated in California. XXXXX XXXXX

Customer: replied 6 years ago.
Unfortunately my mother lived in california and where also where this will was drafted. also I and the rest of my family. Could it be possible to perform the probate in another state? I know my mother was not lucid when the attorney spoke with my mother the first time,she culd not sign her name to any of the documents. But, as I stated before numerous verbal and one physical incidents by my sister (beneficiary)occurred that witnesses can attest to. On my mothers deathbed, My mother also asked my father to forgive her for what she had done in front of witnesses.
Expert:  Elizabeth Powell replied 6 years ago.

Okay, now I understand. If your mother was domiciled in CA, then the will and or trust instrument is going to have to pass under CA law. CA probate is costly and complicated, which is why there is such a business in trusts. You can't deal with this in another state if your mother was a CA resident at the time of her death.

I hear your concerns about your mother's capacity. That is a separate problem from whether your mother effectively placed her real property in a trust. However, CA is a community property state. Real property owned by a married person, subject to some exceptions, belongs to the other spouse (an undivided one half interest).

I know your initial concern was whether your sister could make your father leave and be homeless. I can't tell you without seeing what estate planning was done, and I am not a CA attorney. But the story you have related certainly sets off my alarm bells. Please concentrate your energy on finding an hiring an attorney to help your father. You may have a will contest. Your mother may have died without a will. Your sister may have unduly influenced your mother. You need an attorney to review the documents and take the history and determine what to do. The advice you received from the first attorney was very poor. Spouses cannot disinherit spouses, and cannot divorce a dead person. You have to get to an attorney who can accurately apply the correct law. I wish you all the best with this. XXXXX XXXXX

Elizabeth Powell, Family Law Attorney
Category: Family Law
Satisfied Customers: 127
Experience: Washington State
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