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Elderlaw: 10/01/2009

Elder Law

Dear Len & Rosie,

After my second wife passed away, I put my step-daughter's name on the title to our house as joint tenants. I tried to sell the house last year but she would not sign the papers because she said she wanted the whole house. I went to a lawyer, and he didn't do anything. I went to another lawyer, and still nothing. I have already spent $7,000 on lawyers and I have made no progress.

All I want to do is sell the house and give her one-half of the money I get, but she won't listen. My step-daughter wants to buy the house from me for only $40,000. If she gets it, she'll sell the house for a lot more money. I pay all the upkeep on the house, including taxes, insurance, and everything else. She never paid a cent.

I am 77 years old and she is waiting for my death so she can get everything. She never sees me and has never done anything for me since her mother died, even though she lives only 3 miles away. She is so mad about me because I have a girlfriend who takes good care of me. I want to sell the house, but not to her for what little she wants to pay. I worked too hard for that. Do I have the right to sell the house without her signature?


Dear Domenic,

Every once in a while someone asks why we tell people to put their homes into a revocable trust to avoid probate instead of just adding their children to the title of the property. The next time that happens, I will show them your letter. When you gave your step-daughter part of your house, you gave up your exclusive control of it. Your daughter is as much an owner of the house as you are, at least according to its title. Because of this, you cannot sell the home without her agreement.

You can sue your step-daughter and ask the court to revoke the joint tenancy deed and return the property to your name. You have a case, as long as she did not pay you for her half of the home, and has never contributed to its maintenance, insurance, and property taxes. Your attorney can argue that you added your step-daughter to the title to the home only to avoid probate, and that you didn't mean for her to own an interest in the property until after your death. This is not an automatic win, because you have to overcome the legal presumption that the title to the home is correct. This may be what your attorneys have tried to do for you. Unfortunately, it's not cheap. This may easily cost you more than $7,000 to see it through.

If you're willing to settle for half and you want to sell the property now, you can sue your step-daughter in an action for partition. The court will order a neutral party to sell the property and divide the proceeds of the sale between the two of you.

If you do not want to sell the property, you can sign a deed that will sever the joint tenancy and change the title of the property to a tenancy in common. Your step-daughter will still own half, but she won't get your half when you die. Then, you can leave your half of the home to someone else in a will or revocable trust.

The lesson learned here is this: Don't add a child or step-child to the deed to your home without the full understanding that you can't just take it back whenever you want.

Len & Rosie

Dear Len & Rosie,

My 78 year old father died last November. My stepmother inherited everything under his will, even though Father always said that my brothers and I would get his money when he died. Of course, she is also named the executrix of his estate.

My father was married to her for over twenty years and cared for her at home until the day he died. When we buried him, her family praised him at the funeral for taking care of her for so long.

The problem is that she has had full blown Alzheimer's and now lives in a rest home. She is entirely incompetent, and could not even recognize my father in the last year of his life. Her son served as my father's executor, because of her disability.

She is actually very wealthy, and does not need the money given to her by my father. She owns two houses, a vacation home, and a six figure brokerage account.

I have seen her will, and she gives nothing to me or my brothers. Our inheritance has been thrown away to a woman who can't use it and doesn't even know she has it. Is there anyway to fight this?


Dear Kathy,

This whole problem could have been avoided if your father had made his wishes clear in his will. He could have left his estate in a trust for the lifetime benefit of his wife that would pass to his children upon her death. Because your father failed to do this, you have big problems.

There are two ways for you could try to get a portion of your fathers's estate. First, you could simply ask your stepmother to give you the money. Unfortunately, since she can no longer make decisions for herself, she cannot give you the money. You could ask her son, who is probably managing her estate with a power of attorney or through a conservatorship. But that won't work either. He cannot give away his mother's money without breaching his fiduciary duty.

The other alternative is to challenge your father's will in court, but it's very difficult to throw out a will. The court won't toss out a will because it isn't what you think your father really wanted. What your father told you doesn't really count - it's the words of his will that are important.

To win, you have to get the court to throw out the will. You would have to prove that your father lacked mental capacity when he executed his will, or that he was the victim of undue influence. And even if you win, your step-mother will still inherit one-third of your father's separate property and all of the community property.

Frankly, your best bet may be to come to some sort of accommodation with your step-mother's family. If their respect to your father extends to his children, you and your brothers may get your father's estate after his wife passes away.

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.

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