Ventura, CA asked in Estate Planning for California

Q: How can I insure that the property my husband and I aquired with my inheritance will go back to my family.

We have a 5 unit property that we purchase cash with my inheritance that I received from my mother in Austria. We have no children. We have a living trust, it is named in the trust, but we want it to go back to my family once my husband and I are gone. The way the trust reads is, that everything is 50% his family and 50% mine once we are both gone, but this is my inheritance and we both want it to go back to my family. Should I record it in both our names outside the trust? But in that case it will go to probate once one of us dies, right? I do want it to go to my husband should I die before him (and visa versa of course), but it should go to MY family once we are both gone and the rest of our estate cand be divided 50/50 between the two families.

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4 Lawyer Answers
Nina Whitehurst
Nina Whitehurst
PREMIUM
Answered
  • Estate Planning Lawyer
  • Crossville, TN
  • Licensed in California

A: There is more than one way to handle this, and more information would be required to make a final recommendation, but one option would be to create a separate trust to hold your inheritance and properties you have purchased with your inheritance. You would then pull that property out of your joint trust and place it in your separate trust. I would also recommend a Community and Separate Property Agreement in which you and your husband spell out what is your separate property, what is his separate property and what constitutes your community property that you own together.

Deanny Lungu , Carol A Fauerbach and James Edward Berge agree with this answer

1 user found this answer helpful

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney
PREMIUM
Answered
  • Estate Planning Lawyer
  • Carlsbad, CA
  • Licensed in California

A: I wouldn't record it outside of the Trust because you would lose all the advantages the Trust provides (like avoiding Probate).

Just amend the Trust to read what you want instead of the "50-50" split you have now.

Carol A Fauerbach and James Edward Berge agree with this answer

David Ostrove
David Ostrove
PREMIUM
Answered
  • Estate Planning Lawyer
  • Los Angeles, CA
  • Licensed in California

A: Inherited property is your separate property. It is not community property unless you have gifted some of it to your spouse. You may give it t or leave it to whomsoever you intend. It is important that you have maintained title in your name as your separate property and not as community property or joint tenancy. You could also have a written agreement with your spouse wherein you and your spouse agree that said property is your separate property and your spouse claims no interest in it. If you leave to the persons you want to leave it to through trust and you list all of your property in the trust, it will NOT go through Probate. You will avoid probate, You should check with your lawyer, in my opinion.

James Edward Berge
James Edward Berge
Answered
  • Estate Planning Lawyer
  • San Jose, CA
  • Licensed in California

A: As Nina says, one option is to create a separate property trust for your inheritance and provide lifetime benefits for your spouse if he outlives you and then benefits for your other family when he dies (so that none of that property passes through his estate or goes to his family when he dies). You can do this within a joint revocable living trust as well (you really don't need to incur the additional expense of a separate property trust if you don't want to). Either way would ensure that your wishes are carried out when you and your husband die. The other way would be to leave everything to your husband through your living trust with your wish and desire (the moral obligation that you each have to each other) for him to leave your inheritance to your family upon his death. If you both trust each other and he lives up to your trust, this is an informal way to accomplish your desired objectives; but if he promises to take care of your family and fails to live up to his promise, there's no enforceable way to remedy the situation. It's a balancing act: how formal do you want your instructions after your death (the more formal, the more likely that they'll be carried out; the less formal, you'll need to have a very trustworthy spouse but no way to enforce your wishes).

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