How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask socrateaser Your Own Question
socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 38889
Experience:  Retired (mostly)
Type Your Estate Law Question Here...
socrateaser is online now
A new question is answered every 9 seconds

I am challenging my mothers trust as my brother coerced her

This answer was rated:

I am challenging my mother's trust as my brother coerced her into leaving her everything. He is 52, never left home, refused to work and told her lies about me and my children. There was a letter on her table after she died in which she stated, "Chris, I now know it is you who have been stealing from me". This was a subject of a police report and police response. Etc. My brother has gone through 2 law firms, was pro per, but now has a law firm in Sacramento which is reallly going to town. Now they tell me that I am in danger of loosing my home which I had in my mother's name. She gave me the deed to the home before she died, but I did not file it until one day after her death because she asked me not do so because she wanted the tax write-off. This lawyer is saying that it is a "failed gift" and I will lose the house because I challenged the Trust. Doesn't the fact that I did so in goof faith and she has a long history of wanting me to get the title to my home back count for anything?

If you are the holder of a deed from your mother to you, and the instrument was delivered to you during your mother's lifetime, then that is in no way a failed gift. Transfer of title is complete on delivery of the deed to the grantee. Civil Code 1054. The fact that the deed is not recorded before the grantor's death is irrelevant, as long as she intended you to have the property when she delivered the deed to you.

The fact that her continuing to use the tax writeoff after delivering the property to you could be viewed as evidence suggesting that there was no intent to make the gift. But, the counter argument is that you have the deed, and I assume the date of her signature and notary acknowledgment is before her death -- which indicates that it was delivered before death, and you merely agreed not to record. But, the fact is you could have recorded the deed at any time, which demonstrates that the property was yours from the moment the deed was delivered to you.

Therefore, this failed gift argument will fail. Frankly, it's practically a frivolous argument -- however, if you don't hire a lawyer to defend you, then you may lose the argument, merely because judges don't like to tell attorneys that their arguments are absurd, when faced by a self represented party on the other side -- because it makes the legal profession look bad.

So, don't screw around and make sure you have competent legal representation, if this attorney decides to sue you to have the deed declared invalid.

Hope this helps.
socrateaser and 5 other Estate Law Specialists are ready to help you
Customer: replied 4 years ago.

Thank you so much. Does your answer apply in California? Do you have someone you can refer me to ?>

My answer is specific to California. I cited Cal. Civil Code 1054, and I am a member of the State Bar of California.

Re referrals, I cannot provide any direct referral in this forum. Otherwise, I would give you my phone number

Attachments are only available to registered users.

Register Here

The only referral source I can provide is the Certified State Bar legal referral services. Click here.

Hope this helps.

Customer: replied 4 years ago.

Bless you. My phone number here in Sacramento is 916 880-6346.

Customer: replied 4 years ago.

Is there nothing new in Probate that would allow this to be viewed as a "failed Gift"? The attorney I was in deposition with today seemed to think so and yelled at me, "You are going to lose your house."

What is the date of your mother's signature on the deed?

Did you draft the deed?
Customer: replied 4 years ago.

The Grant Deed is signed April 10, 2010 and I filed it a day after her death which was February 13, 2011.

Customer: replied 4 years ago.

Also, the original law firm which did the Trust drafted the deed. Boy you are up late. I can't sleep with the thought of loosing my home.

Okay, the "new" law that the attorney is talking about is Probate Code Sections 21380-21392. I won't get into the greasy details, but if you testified at the deposition that you drafted the deed or filled in the blanks on the form before your mother signed, then you could have a problem.

You say that an attorney drafted the deed. If the law firm represented your mother, then that would mean you are not subject to the law that would make the deed invalid.

Regardless, you need a lawyer to review your deposition transcript to see why opposing counsel is so certain that you've screwed up. It could just be a bluff -- intended to get you to settle with your sibling over the trust.

Good luck.

PS. I can't represent you (too far away), though I'm flattered by your confidence.
Customer: replied 4 years ago.

Sleep tight, with your answer, I know I will.