Deceased stepfather bequeathed Moms personal property to his son

[dottie225]

What is the name of your state (only U.S. law)? California
Situation: Widowed mother remarried 5 years ago. New husband had her move into his house and sell hers. They used her house proceeds to remodel his house and they lived off the rest of the proceeds and never touched his money. He set up a trust that included his "house and furnishings" and his CD acct. The trust states that Mom is the trustee when he dies with his son to be trustee after she dies. The trust allows Mom to live in the house until her death at which time the "house and furnishings" and CD go to husbands son. Husband died shortly after setting up trust. Mom not aware of trust until he died.
Mom is temporarily in the hospital with a broken shoulder and is on pain medication. She's pretty fuzzy right now but is normally quite mentally fit. In a recent conversation, the husband's son mentioned having Mom declared incompetent so he could take over as trustee. He then stated that after her death, ALL the items in the house would be his including Mom's stuff. When Mom moved into his house, she brought with her all our family heirlooms (lots of Dad's collections). Now the question: Can he take all Mom's personal property too? She is leaving her personal property to us (her kids). What about things she bought after the husband died. Son gets those too? How about the expensive items she and her husband bought together but with her money?(Out of her checking account which was not a joint account) Can anyone advise me? Should I be as worried as I am? Can't sleep thinking this stranger is going to take the heirlooms I grew up with.

 

[curb1]

You asked, "Should I be as worried as I am? ". The answer is "yes".

1) Does your mother have anything titled in her name?

2) Was the house ever titled to the trust, or is it still in father's name?

3) Do you have a copy of the trust?

4) How well is the flow of your mom's money documented? Can you reconstruct the flow from her to joint use?

 

[latigo]

First, understand that one spouse cannot legally dispose of the other spouse’s sole and separate property, neither by gift, sale, by will or through a living or testamentary trust without the owner’s consent. You cannot pass title to something you do not own.

So stop fretting over the half brother’s threats of eventually glomming on to your mother’s prized personal possessions and keepsakes. It ain’t going to happen, unless you permit it.

Have your mother make an inventory of all the items of which she concerned noting the source, date etc. Then have her date and sign it and you keep it in a safe place. If you have the equipment, make photos or video the items.

She should make a specific reference to these personal items in her will and bequeath them as she wishes.
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Secondly, there is another issue involving the expenditures of her sole and separate property that went into the husband’s separately owned residence that needs to be taken up with an experienced family and property law attorney.

It may be possible to have a separate property lien imposed upon the residence equivalent to mother’s separate property that enhanced its market value.

There is precedent for such in the analogous California case of Estate of Barriero 86 Cal. App. 764, 261 Pac 509 where the widow was able to assert (not a separate property lien) but a community property lien against the estate of her deceased husband for community funds he expended improving his separate property. *

And if during the marriage there were any encumbrances/loans against the residence, the community estate may have a lien/interest to the extent that community funds were used to reduce the principal balance of those loans.

These and other questions related to the disposition of property following the husband’s death, the status of his estate, widow’s right, etc., need to be examined in depth by a professional.
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Unless there is some stipulation involving the trust that provides otherwise (most unlikely) as long as mother is mentally competent she is not going to be replaced by her stepson.


[*] Establishing the separate property lien can be difficult proposition evidentiary wise. The case law that I am familiar with holds that where the funds go into improving the other spouse’s separate property, first the consideration of a gift must be take into account especially when it is the wife’s separate estate that is being improved.

Another is in fixing the amount of the lien, which in my state is not dollar for dollar, but the increased market value of the property attributed to by input from the non-owner spouse’s separate property. Which can be a major headache appraisal wise.