do I need a new lawer?

[Michael600]

What is the name of your state? I am located in Califoirnia.

My wife passed away in 1996.

We bought a house together in 1993, before being married. The house has a none specificed deed of trust. The title by presumption is tenants in common.

We became husband and wife in 1994.

My wife had two children from a previous marriage.

my wife passed away in 1996.

I am trying to settle the estate, but some of the things my lawer is telling me do not match what I am reading about probate? I am not sure if I need a new lawer or maybe I am not understanding the probate laws?
My lawer has told me that the value of the house for the estate is the value of the house on the date the estate is settled, not the value at the date of death? He has also told me that I can not subtract out any of the money still owed on the mortage from the eatate? I have rented room in my home since my wife died to off set the loss of her income. My lawer has told me , my wifes children are entiled to part of the money I have made off renting room in my home?

So I have been told that I will have to pay the two children 1/6 the value of the house, at the time the estate is settled, with out subtracting any part of the mortage each, plus 1/6 of any rental money I made off my home? dose this sound right?

 

[ALawyer]

For Federal estate tax purposes the value of the house at the date of death (or under some circumstances, 6 months later) governs. BUT that same rule does NOT apply for purposes of distibution of property.

Assume your wife had 100 shares of Global Crossing that were selling for a total of $5000 at the time of her death in 1996, and you held them and did not sell to this day. Those same shares would have been valued about $1,000,000 in 1999 but would be worthless now.

Had she died in 1999, and you were to distribute the estate today you would not have to value the shares at $1,000,000. You'd have the obligation to distribute a pro-rata part of the stock if you settled the estate, whether in 1999 or today. If the value of the assets goes up prior to distribution the beneficiaries get more - and if the value decreases they get less.

The money still owed on the mortage impacts the value of the home -- the net value is where you begin to calculate the share of the estate. Now the fact that you have paid off some of the mortgage on her share should inure to your benefit.

A share of the rent you earned on her property since her death would likely be part of her estate too. If she owned an office building the rents you had collected on it, less the expenses incurred (including, perhaps, an imputed management fee) would be part of her estate, and I fail to see the difference just because the property she owned was a house you shared. The issue would be allocation -- how much of the rent is "hers" and what expenses can you claim to offset that rent?

I do not know what your and her family situation is, and thus I am clueless on what her kids are entitled to. But I have no reaons not to believe your lawyer and, quite frankly, 1/3rd of her estate seems low.

If you want a second opinion, by all means buy an hour of another lawyer's time -- and after that if you feel your existing lawyer doesn't know the law or is not looking after your interests, get a new lawyer.