Living Trust, Beneficiaries & Foreign Property

[Arlene]

Jurisdiction

California

My parents home is paid for. They want to create a living trust putting their four daughters as beneficiaries upon their death. My mom is 90 and totally of sound mind, but my dad had dementia. He still understands things, but not totally. They have already put us as beneficiaries on their bank accounts. They also own property in another country that they would like to include in the living trust. Is it possible to include the foreign property in this country's living trust? Also, in the event that one of us dies before them, can they put our children as back up beneficiaries for us? I hate thinking about this, but it is what it is and my mom wants it looked in to. Thanks!

 

[adjusterjack]

my dad had dementia. He still understands things, but not totally.

That is going to be a big problem. The competency standards for creating a trust are much more rigorous that the competency standards for creating a will.

The following article explains the difference. Show it to your Mom.

Mental Capacity - Trusts | Elder-Law-Advocate

There's more at the CA Probate Code Section 810-813:

CA Codes (prob:810-813)

I suggest consulting an attorney about all this because, if your Dad has periods of lucidity during which his competency is confirmed you will want that confirmation by independent unbiased witnesses, NOT family members. Unbiased witnesses are more easily found in an attorney's office who can participate in interviewing your Dad to confirm his competency at whatever time he makes the will or the trust.

There may also be a less costly way of of transferring their home to the 4 of you outside of probate.

Last year CA became one of the increasing number of states to allow a Revocable Transfer on Death real estate deed.

You can read about it in the CA Probate Code starting at Section 5600:

CALIFORNIA PROBATE CODE

Here's a brief guide:

New Transfer on Death Deed in California | A People's Choice

They have already put us as beneficiaries on their bank accounts.

It would also be a good idea to do something about vehicles, too, if any are owned by your parents. Check out Transfer on Death vehicle titles at the DMV website:

11.070 Transfer on Death (TOD) Beneficiary

They also own property in another country that they would like to include in the living trust. Is it possible to include the foreign property in this country's living trust?

I have no idea but I suspect that the disposition of any property in a foreign country would be complicated by the laws of that country and you would have to engage an attorney in that country to advise your parents on how to arrange that. Might be wiser for your parents to sell that property now or it might cost you and your siblings a fortune to handle it after your parents' death.

Also, in the event that one of us dies before them, can they put our children as back up beneficiaries for us?

Yes.

That can be done in a will or a trust, maybe even on the beneficiary deed.

I hate thinking about this, but it is what it is and my mom wants it looked in to

She's wise to do something about it now. Probably should have addressed it long ago. You and your siblings should be addressing your own estate planning now, too, not later. My kid brother died at the age of 61 a couple of years ago. Death can come as an unexpected unpleasant surprise at any time and if you haven't planned for it, you don't get extra time to do so.

 

[Arlene]

That is going to be a big problem. The competency standards for creating a trust are much more rigorous that the competency standards for creating a will.

The following article explains the difference. Show it to your Mom.

Mental Capacity - Trusts | Elder-Law-Advocate

There's more at the CA Probate Code Section 810-813:

CA Codes (prob:810-813)

I suggest consulting an attorney about all this because, if your Dad has periods of lucidity during which his competency is confirmed you will want that confirmation by independent unbiased witnesses, NOT family members. Unbiased witnesses are more easily found in an attorney's office who can participate in interviewing your Dad to confirm his competency at whatever time he makes the will or the trust.

There may also be a less costly way of of transferring their home to the 4 of you outside of probate.

Last year CA became one of the increasing number of states to allow a Revocable Transfer on Death real estate deed.

You can read about it in the CA Probate Code starting at Section 5600:

CALIFORNIA PROBATE CODE

Here's a brief guide:

New Transfer on Death Deed in California | A People's Choice



It would also be a good idea to do something about vehicles, too, if any are owned by your parents. Check out Transfer on Death vehicle titles at the DMV website:

11.070 Transfer on Death (TOD) Beneficiary



I have no idea but I suspect that the disposition of any property in a foreign country would be complicated by the laws of that country and you would have to engage an attorney in that country to advise your parents on how to arrange that. Might be wiser for your parents to sell that property now or it might cost you and your siblings a fortune to handle it after your parents' death.



Yes.

That can be done in a will or a trust, maybe even on the beneficiary deed.



She's wise to do something about it now. Probably should have addressed it long ago. You and your siblings should be addressing your own estate planning now, too, not later. My kid brother died at the age of
Thanks for the advise. As far as the dementia is concerned, my mom says she thinks the deed to their house reads my dad's name-or-her name, not my dad's name-and-her name. Is there a difference in the two wordings of and,or...or? My husband and I are diffidently going to start working on ours. Especially considering we have kids, but not any together.


1 a couple of years ago. Death can come as an unexpected unpleasant surprise at any time and if you haven't planned for it, you don't get extra time to do so.

 

[Arlene]

Thanks for the advise. As far as the dementia is concerned, my mom says she thinks the deed to their house reads my dad's name-or-her name, not my dad's name-and-her name. Is there a difference in the two wordings of and,or...or? My husband and I are diffidently going to start working on ours. Especially considering we have kids, but not any together.

 

[adjusterjack]

As far as the dementia is concerned, my mom says she thinks the deed to their house reads my dad's name-or-her name, not my dad's name-and-her name. Is there a difference in the two wordings of and,or...or?

I suggest you read the deed because property owned together by spouses is generally "JTROS - Joint Tenants With Right of Survivorship." There is no "and" or "or" on a spousal deed, and there shouldn't be. Correction: Could read "Jane and Joe as joint tenants with right of survivorship." Wouldn't matter if the underscored "and" was "or" because it's the "JTROS" that counts.

A "JTROS" deed means that the property automatically goes to the surviving spouse and doesn't have to be probated.

If your Mom doesn't have a copy on hand you can get one from the County Recorder's office in the county where the property is located. Many Recorder's allow printing out a copy from the website unless the deed is so old that the records that far back haven't been computerized. Then it means a trip to the Recorder's office.