Dear Len & Rosie,

I am married to my second husband but our home is in my name alone. It was purchased and paid for by my first husband and me. We have a small loan of $5,000 against the property. I would like to leave the house equally to my husband and my two daughters by my first marriage. I need either a will or a living trust, but I want whatever will make it simpler for those I leave behind.

Sara

Dear Sara,

Interestingly enough, if you want your home to be divided equally between your husband and your two daughters, you do not even have to have a will. Because the house was your sole property before you married your second husband, it is your separate property, except for whatever small portion of your community property that has gone into paying off the loan you mentioned. Under California’s intestate succession laws, your husband will inherit one-third of your separate property and your children shall divide the rest, if you die without a will.

But you should have at least a will anyway. Simple wills are very inexpensive. Without a will, you cannot appoint an executor to administer your estate and there could be some conflict in your family about who should get the job. Also, if one of your daughter’s dies before you, her share shall pass to her children, if she has any. If a minor grandchild inherits from you upon your death, the grandchild’s share would be held in a guardianship which would terminate at age 18, when the minor would receive his or her share outright. Most 18-year-olds are not responsible enough to manage that sort of money. An estate plan that creates a trust for the benefit of young beneficiaries is vital. Better yet, create a revocable trust to avoid probate in the courts upon your death.

You may also want to reconsider your intention to give your daughters two-thirds of your home immediately after your death. If they and your husband own your home together, any one of them can sue the others and force a sale of the home in an action for partition. Conceivably, your husband could wind up with some cash in his pocket and no place to live.

An alternative to giving everything away outright is a revocable trust, or a testamentary “house trust” written into your will. A trust can hold your home for the benefit of your husband for the rest of his life. After your husband dies, the trust can then give everything to your two daughters. This way, your children will ultimately get all of your property, instead of just two-thirds, and your husband will be assured of a place to live out his days.

You should visit an estate planning attorney, to discuss what you want to do with your property when you die. Even when people have simple desires such as your own, complications that they are unaware of can ruin their plans. An attorney can let you know of the things that can go wrong and help you create an estate plan which will do what you want.

Len & Rosie

Tillem McNichol & Brown