My mother and step father did a joint living trust about four years.

Full question:

My mother and step father did a joint living trust about four years. My step father who was married to my mom for the last 23 years recently passed away after two years of dealing with cancer. In the living trust both my mother and step father, individually stated what they wanted to happen upon their death. Their only assets are two homes, one which they purchased together and lived in for the last ten years. The other which he owned prior to their marriage but lived in together for 13 and upon the property being refinanced both of their names placed on title. This home is now a rental property. My step father's living trust stated he wanted to leave 5% from each property to two children he and my mom had together, 5% from each home to two of his daughters he had in a previous marriage and 5% from each to my full sister from my mom's previous marriage. Here are my questions: 1. a week after my step father's death his daughters from his first marriage mailed a copy of quit claim deed signed about six weeks prior to his death (his last two months he was in pretty bad shape) switching ownership from my step father to them on the rental property. They also had an attorney called her demanding to sell the property to collect half of the amount of the profits of the sale or half the amount of appraised value of the property. Does a quit claim deed signed six weeks prior to death over rule a living trust completed four years prior? Does this quit claim deed nullifies what is stated on the living trust regarding the rental property and still applies to the other property? How difficult is it to establish that 85 years old, bed written and the final stages of cancer he did not have the capacity to understand what he was signing? 2. If the living trust still stands, the 5% inheritance of each property should be based off his 50% ownership of the property not the entire property, correct? 3. What is the typical time frame in which my mother would have to execute on his wishes specially since the inheritance is not a liquid asset? I have advised my mother that for the time being ignored this attorney's calls and letters and wait til they ensued some type of civil matter....

• Category: Trusts
• Date: 04/07/2025
• State: California

Answer:

Typically, when there isn’t a specified time deadline provided, the courts will imply a “reasonable time”. There is no bright line rule for defining a reasonable time, it will be a subjective determination based on the facts and circumstances in each case.

Community property consists of the property, other than separate property, acquired by either spouse during marriage. In California, when separate property is refinanced, adding the other spouse’s name to the title, it becomes community property and the separate owner is entitled to reimbursement for separate funds used to acquire the property, unless the right to reimbursement is waived.

It is difficult to prove incapacity postmortem. Proof of incapacity is typically based on medical evidence, such as testimony from doctors and medical records. In order to invalidate a deed for lack of capacity, It must be proven that at the time of signing, the person didn’t understand the nature of his action. Testimony of witnesses may require inference, extrapolation, and cross-confirmation instead of the direct observation that is possible premortem.

A trust may be altered or have assets removed from it if it is a revocable trust. If the trust is irrevocable, assets generally may not be removed from the trust. Whether the trust is revocable or not will depend on the language of the trust. The language used in the trust terms will also govern whether the percentage you referred to is calculated as a percentage of the total asset or a percentage of the stepfather’s equity in the asset. I suggest you contact a local attorney who can review all the documents and facts involved.

The following is a CA statute:

2640. (a) "Contributions to the acquisition of property," as used
in this section, include downpayments, payments for improvements, and
payments that reduce the principal of a loan used to finance the
purchase or improvement of the property but do not include payments
of interest on the loan or payments made for maintenance, insurance,
or taxation of the property.
(b) In the division of the community estate under this division,
unless a party has made a written waiver of the right to
reimbursement or has signed a writing that has the effect of a
waiver, the party shall be reimbursed for the party's contributions
to the acquisition of property of the community property estate to
the extent the party traces the contributions to a separate property
source. The amount reimbursed shall be without interest or
adjustment for change in monetary values and may not exceed the net
value of the property at the time of the division.
(c) A party shall be reimbursed for the party's separate property
contributions to the acquisition of property of the other spouse's
separate property estate during the marriage, unless there has been a
transmutation in writing pursuant to Chapter 5 (commencing with
Section 850) of Part 2 of Division 4, or a written waiver of the
right to reimbursement. The amount reimbursed shall be without
interest or adjustment for change in monetary values and may not
exceed the net value of the property at the time of the division.

Please see the information at the following links:

http://definitions.uslegal.com/r/revocable-living-trust/
http://definitions.uslegal.com/m/marital-assets/
http://definitions.uslegal.com/i/incapacity/
http://lawdigest.uslegal.com/estate-planning/trusts-overview/

Please see the forms at the following link:

http://www.uslegalforms.com/realestate/