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October 16, 2014 4:25 PM   Subscribe

I want to make a revocable trust...

I am endeavoring to be financially responsible. Help me please! YANML. I want to make a revocable trust to avoid probate. The only real property I have is my residence. Here’s my situation – I live in CA. I am a woman who is legally single. I have been living with my domestic partner for >30 years. He helped me raise my son. My partner is an artist but has had no income for years. He has no assets and no real property. As far as potential heirs go he has no children. He does have one brother, a niece and a couple of nephews, cousins. We share a house that I own. Only my name is on the title as PEF, single unmarried woman. My partner inherited some money of which he gave the bulk to me towards the mortgage. If I die before him I want my partner to have a place to live and ½ of the money I have. The other half of the money will go to my only child who is an adult.

My partner and I would like to get married in the coming year. We think it would be easier if we were married in case of illness and so on. All the practical reasons!

My partner has said that when we both die everything should go to my son. My partner has no interest in any financial issues. My son is concerned that if I marry before I make the trust and then I die before my partner there will be the risk of the house going to my partner’s family. I don’t think it is a probability but you never know.

What’s the best way to make sure my partner has a place to live? I was thinking partner and I would marry and then put the house in both of our names. Then when he dies the house would go to my son. My son and his wife suggested that I make my partner a beneficiary with the right to live in the house until his death. Would this be a good idea? Partner and I are both approaching 60.

Should I make the trust as a single person? After I am married can I continue with the trust I create as a single person? Should we make a new trust as a married couple after the wedding?
If we have a trust as a married couple can I change the title of the house directly to the trust from single, unmarried woman? A lawyer told me to take these steps: get married, put the house in both of our names, make the revocable trust as a couple and change the title of the house to the name of the trust. Are all those steps necessary?

What’s the best way to handle this? I want to take care of all this very soon. Partner and I are terrible procrastinators. One reason that we are not married after 30+ years. Advice will be greatly appreciated.

Thank you so much!
posted by pef to Law & Government (6 answers total)
The way you make all these decisions is to talk to a lawyer who specializes in estate planning.
posted by Sequence at 4:32 PM on October 16, 2014 [8 favorites]

Lawyer, lawyer, lawyer, lawyer. This should be a relatively simple document to draw up, but only a licensed attorney in your jurisdiction with relevant expertise can do it properly and avoid complications.

An old boss once got to deal with the fallout on one of these, where a cousin, who owned a valuable house, and his wife died in relatively quick sucession, leading to a lawsuit that literally lasted decades and all turned on extremely technical points of whether the husband's estate had been properly closed out before the wife died. The cousin died in the 70's, and the status of the house was still uncertain a couple years ago.

This is a choice between spending a few hundred dollars to do it right with a lawyer now, or condemning your heirs to spend many thousands paying lawyers to sort through the mess you leave behind later.
posted by firechicago at 4:39 PM on October 16, 2014 [5 favorites]

Ya got the gist right: trust can give spouse a right to live in the place, and at death to your kids. It's probably easiest to get married and then put the house in a joint trust (some tax reasons if the gain is could be >500k, administrative reasons), but there probably isn't any reason you couldn't put it in your own trust now. Ypur attorney has to draft the docs anyways, so s/he can also advise on whether there's a strong reason to wait til marriage.
posted by jpe at 6:23 PM on October 16, 2014

Hi, I'm a lawyer and I'll do your trust if you have twenty minutes.

Just kidding. You need legal advice from an estate planning lawyer in your jurisdiction. It appears from your question that you asked a lawyer for advice and you are now asking the Internet for a second opinion. I do not recommend this strategy. If you want to do this, you need to retain an estate planning lawyer.
posted by Tanizaki at 6:44 PM on October 16, 2014 [1 favorite]

Nthing attorney!

This could be accomplished with a trust, or maybe just a will, depending on your needs and total asset value. You'll want to meet with an estate planning and/or elder care attorney. The following things should be discussed:

-Trust, if any
-Medicaid planning/asset protection
-Estate/gift tax planning (depending on asset value, most people don't have to worry about this)
-Advanced directive/living will
-Health care proxies
-Powers of attorney

All of these would need to be redrafted/reconfirmed after marriage (to be on a stronger legal footing), so it doesn't make sense to do it twice. That said, if you're not planning on getting married in the next 3 months or so, then I would just go ahead and start the process now (at least re the proxies and wills), as you never know what tomorrow brings. I also recommend the ABA's tool kit for advanced health care planning (PDF).

The best time to plant a tree is 20 years ago, the next best time is now.
posted by melissasaurus at 4:36 AM on October 17, 2014

Your partner says he wants no money from your estate; I told my parents the same thing. Their estate lawyer advised them to will me the assets, and I could accept or disclaim them when the time comes. Whatever portion I disclaim will go to the contingent beneficiary. This might be a good option in your case, since your partner has no idea what the future holds.
posted by wryly at 9:31 AM on October 17, 2014

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