Contract to Make a Will

Dear Len & Rosie,

My adopted father built his own home on property in 1964. My mother and I contributed substantial labor towards building up the home, road and ranch. My dad always said, “This will all be yours one day. You aren’t just working for me, you’re working for yourself.”

My mom passed away ten years ago and since then my dad got into a relationship with one of her best friends as his significant live-in lover. My dad feels that he owes her something for living with him and caring for the place for the past nine years.

Dad says he wants her to be able to live there after he dies for as long as she wants to or unless she remarries. I have no problem with this plan but as far as I know he has not made a will to this effect. He is dragging his feet on legal paperwork.

I am afraid that when he dies, she will claim some sort of squatter’s rights and try to take the place away from me or run up extreme maintenance costs that I can’t cover, forcing me to sell the home. What can I do to guarantee that I will get the house and land as I was promised all these years?

Richard

Dear Richard,

There’s no such thing as common law marriage in California. She’s not his wife, no matter how long they live together, unless they get married for real.

The fact that you were adopted by your father means that you are his son for all legal purposes. If your father dies without a will or trust, then everything in his estate (that is, everything titled in his name alone without a beneficiary) will be inherited equally by your father’s children. If you are the only child, it all goes to you. The only way your father’s live-in girlfriend can normally inherit, is if your father adds her to his accounts or the deed to his home, or if he makes a will or trust leaving something to her.

However, the girlfriend could claim that there was a “contract to make a will,” that is, she could claim your father promised to leave her property in exchange for her moving in and taking care of him. You could do the same yourself, based on your father’s promise that “One day, all this would be yours.” As always, the hard part isn’t having a case, it’s proving your case in court.

The smart thing for you to do is to urge your father to create an estate plan. He ought to have a revocable trust to avoid probate. He can make you the trustee after he dies, and leave his girlfriend the right to live in his home until she dies or gets married. He needs to see an estate planning attorney. If he does not, then all of his assurances to both you and his girlfriend could become nothing other than empty promises and a difficult lawsuit.

Len & Rosie