We wonder what to get Mom on Mother’s Day and end up getting flowers. Mothers, because they love us, like the flowers and say “Thank you, Honey. They’re so pretty.”
If you want to actually do something meaningful for your Mother this year, we have a suggestion.
Check the deed on her house! Make sure that she is actually ON THE TITLE!
As an Estate Planning law firm, this is something that comes up quite often with clients. At some point in the past a couple has refinanced their home. During the process and among the piles of documents that they signed was a transfer deed taking one of their names off of the house title. Usually with the older generation it is the wife being removed, because the husband has the credit and is securing the mortgage. This happens even if the home was already in a Revocable Living Trust, one deed to take it out of the Trust and one to remove Mom from the title. The house is now the husband’s sole and separate property and no longer seen as a community property asset.
The loan company makes sure to inform the couple that they need to execute another deed once the loan closes to put both of the couple back on the title and put it back in the Family Trust. This is very frequently lost in the shuffle of all the other documents and tasks required to close a loan. The large envelope with all of the loan papers is taken home and put in a drawer and then forgotten.
When this can be a major problem is if something happens to the husband. If he passes away as the only acknowledged owner of the family home, his wife will have to go to probate court at this traumatic time. Since the house is his separate property it might not be inherited by the wife alone, depending on whether there is a Last Will and Testament. Under California intestate succession law, separate property is divided among the spouse and any children of the deceased person. If there are no living children or grandchildren of the deceased then it could go to his parents or even his siblings! How would your Mother like to share ownership of her home with her step children, Mother in law or her dead husband’s brothers and sisters? This nightmare scenario happens to a Widow just after her husband died. Wouldn’t that be a comfort in this emotional time, having the ownership of your home under a cloud?
Even if there is a Will, a probate court action called Spousal or Domestic Partner Property Petition is required. This can take several months and isn’t free. This is one time when having an Estate Plan including a “Pour over” Will might cause a problem. If the Will names the family revocable living trust as the beneficiary, the Spousal Petition can’t be used. A full Probate is required, this can easily take a year or more to complete.
So do a good “deed” for Mom, call the county clerk and find out if she is listed as one of the owners of her home.
If she isn’t listed get it fixed right away. If you’re not sure how, then give an Estate Planning Attorney, such as Bingham Law, a call.