Episode 12 – Stand, Fight, Win! LIVE: Real Lawyers, Real Answers – Stepparents & Inheritance, Part I

[Music] Today we're on the topic of stepparents mixed families second marriages all the different complications that come with different and changing family dynamics is gonna be the topic of today's livestream welcome to Albertson and Davidson the stam fight when live stream real lawyers real answers I'm Keith Davidson I'm Stewart Albertson how you doing Stewart I'm doing good how are you Keith I'm doing all right you ready to talk about step parents let's talk about step parents they're some of my favorite people yeah so let's get started today we're you know right to the question ask Nancy and the reason we're gonna go to questions today is that there is tons and tons of questions when it comes to what happens when your mom or dad marries somebody who's not your parent and insanity ensues with the estate with the property and all of that tons and tons of questions on that and let me just say starting out that it's the men it's the men's children who generally gonna end up losing here and I'm not being sexist I'm just saying that has been my experience in these cases and we're gonna go through a bunch of questions today on this but because of all of the mixed families and blended families were seen based on the divorce statistics over the last thirty years we're seeing multiple marriages multiple children from different sets of marriages and it's causing some real issues in who gets when somebody passes away what I think statistically you're right I mean it's not a sexist statement but I think it's I mean I guess you could be taking sexes but it's really not because in our experience and we've had a lot of stepparent cases the women tend to want to protect their kids and the men tend to want to protect their spouse that's predominantly the way it works and so whatever causes that I don't know but that's that tends to be the way things happen I agree with that so let's see what kind of questions we have on the topic of stepparents Kayla you're up so our first question is what if my dad left everything through my stepmom and then my stepmom left me out of her well why don't you take a shot at this one well sometimes the answer is really sure which is you're screwed but let's let's dive into that a little bit deeper rather than just leaving it there so your dad leaves everything to stepmom and then stepmom doesn't give you anything so the starting point and where that problem always goes wrong is with dad why did dad leave everything to stepmom because they had a long conversation list list D construct this this is 10 years ago right they this is a second marriage for dad he's been married to this individual for ten years ten years ago so now spend a total of 20 years when he passes and ten years ago you know he feels that he knows this person well and by the way this is probably not a bad person the wife she's not a bad person she's she wants to make sure her retirement is secure and then dad says to her what what are those magic words he says he's saying hey honey I know you're gonna do what for my children again take care of them you're gonna treat him right right you're gonna be fair and what does she say of course yeah course I'll treat him fair right and she's in her mind at that time probably does believe she'll treat them fairly but then in the intervening ten years there's a breakdown in the relationship between husbands children and the wife perhaps maybe at a Thanksgiving dinner or Christmas dinner or something along those lines and and the relationship is strained to some extent dad doesn't change his will or his trust that gives everything to mom he passes everything does go out right to stepmom do the kids of dad have any rights visa vie their dad's estate it depends on what dad did and how he set it up and I think the problem is so many people think well that was my dad's property and even though he gave it to stepmom shouldn't I get something cuz that's fair that's that's the fair Rizzo I'd add right but the problem is is that it all depends on how dad's set it up and so if dad truly gave everything to stepmom and it could be the reverse to if mom loved everything this dad then it's up to the spouse the step-mom or stepdad to make up their own mind as to how these things are gonna go so now in your example stepmom said yes I'm gonna take care of the kids but the time comes and stepmom goes well they've been very rude to me they've been just awful they've been asking me about getting their money before dad even died and when he was still in the hospital or you know whatever the story is sure and so why should they get anything that's right so I'm not gonna give them anything and the children in that example are really powerless to do anything about it because of the way dad set it up now there are ways where dad could set things up to protect the children by using a trust and holding things and Trust and planning these things out properly but in the cases that we see and we handle which are all the problem cases that didn't happen not all the time right yeah even when and I think we have questions that'll go to that later on today but even when dad does do some of that appropriate planning on the trust side of things a stepmom generally or stepdad whoever the surviving spouse is here they generally don't follow the terms of that trust and then you have to re-engineer that down the road right yeah right even if you have something in writing they may not have done it right right it's at least if you had something at writing you have something you can enforce right I think the question is but why should I have to hire a lawyer if that's the case why should I have to hire a lawyer if the trust says that mom supposed to give me one half the inheritance you know sometimes people are giving gifts that come with huge strings attached right there they're troubled gifts and I always I kind of don't compare it to cancer right so if some you have a cancer in your family and you're given a gift that has a cancer attached to it you have to fight that cancer and it's true just in the medical world if somebody has a cancer it's not fair it's not right they shouldn't have to pay for doctors and medical care to fight that cancer but that's the reality you do have to and same here is that you got a gift the gift has a cancer if you're gonna fight that cancer then you have to hire a lawyer and pay money and get it done and so it's very troubling I think for most people to realize that that's the type of gifts that they were given because they never expected that could you expect to just get a gift from your parents and the trust term say I'm supposed to get it and I'm not getting it but in this case right here the question we had there is no trust there are no trust terms dad left everything a stepmom stepmom now if she wants to give it to any of dads children she can do that that's a gift though but it's completely in her control right yeah she has a hundred percent control under that scenario and that happens more often than you think but there's not a I think the key here is there's not an atom automatic right for a child to get some of dads property just because they're a child of death that in and of itself isn't gonna get you very far right all right Kayla what's our next question the next question is my step parent will not show me a copy of the trust or the will are they allowed to steal my inheritance well nobody's allowed to steal inheritances I think that this is a good question to follow the last question because you're kind of in a gray area where dad has passed on you don't know what the estate planning documents state for example what if everything does go to mom and now you get demanding with a stepmom says and say give me a copy of the trust you're probably not going to be in the trust very long whereas if you let sleeping dogs lie maybe stepmom passes away ten years from now and she doesn't change anything in the trust and you in fact get a gift and so you're in a very you have to make a decision here do you want the information or do you want to wait and just see how things shake out after stepmom dies the way I would view that is well instead of me and tried the question how would you view that I mean I think being left in the dark has one of the toughest things that you're ever gonna confront in trust the will situations so if you're a child and you just don't know because the step parent won't give you a copy of the document that's the most frustrating position to be in because of what you just said which is you no if you have rights if you don't have rights do you enforce the rights to not enforce the rights you don't know you're in the dark the one thing I'll say is that number one it's not uncommon for beneficiaries to be in the dark so if you feel like you're in the dark and you don't know you're not alone a lot of people are in that same position what do you do with it man that's a very personal question I think everybody's gonna have a different answer well let me let me let me ask you this if mom stepmom has Stage four ovarian cancer and I'm not trying to make light of this but she's she's gonna she's sick and she's gonna die in a year or less do you make any hay about this at all probably not because you think you're right I think you don't want to rock the boat you don't want to be in position where you're taking court action while mom stepmom is home sick and then they're gonna say well that's you know she changed the terms of the trust to disinherit you because you were suing her of course she did okay and if I change the facts on you and dad was in his 80s and stepmom was in her 30s and stepmom as healthy as can be do you want to seek to see if there's perhaps some type of trust planning that made sure that there was a portion set aside for you and your your siblings I'd be more inclined to under that scenario because you don't know how long it's gonna go on and I think the problem too is people will say well don't I have a right to see a copy of the trust once my dad dies do I have a right to see a copy up in the truck you sure do and why won't they just give it to me then well for various reasons it could be controlled it could be ignorant it could be a lot of reasons some people are offended by you asking them for a copy of the trust but it's one of those things where you're either gonna get some really good news yeah or you're gonna get some really bad news and you just don't know and so that's where I was asking you you know how long is stepmom how long do you think stepmom is gonna live I think that kind of will dictate how much your risk you're willing to take right on asking for that information right so there definitely is a risk for going in and asking because if you like you said if the trust is completely revocable it can be changed at any time by stepmom and you rock the boats they can be an expensive mistake and it's like a boom boom I think what you're getting at is that's a mistake we all make mistakes we all pay that's a cost we big costly mistakes at times - that's true all right no more inside jokes all right Kayla what's our next question just passed away and my mother died a few years ago there are assets but no well do I have any rights boy so stepped on just passed away mom died a few years ago so that means mom died first and their assets but no will don't have any right my question here before you start Keith is is there no well for the stepfather or there's no well for the mom or the stepfather let's take it in steps so let's say that let's say mom had a will but her will left it to stepfather and then stepfather dies without a will kids are done moms moms kids are done yeah because they're not related by blood so you're gonna go under the intestate statute and you got some big problems on your hands right now let's say mom died without a will so mom dies first without a will that then it depends on how many kids she has versus stepdad who sapele owns everything with her a community property let's presume that that's the other thing is as a community or is it separate so the intestate distribution of community property as it all goes to the surviving spouse right hundred percent correct but separate property is different it goes half to the surviving spouse if there's only one child of the mom and one-third to the surviving spouse if there's two or more children a mom I think it's good for you I mean hearing that for the first time I remember us confused by that why don't you walk through that one more time so let's say we have mom here and she dies and she has some separate property and she has some community property but no will and she's got two children of her own so what happens there all right so under that scenario 100% of the community property will pass from mom to her spouse kids will not get a dime of that that's just the way it works for the separate property because there's two kids one-third of the separate property will pass the spouse two thirds will go out to the kids okay and let's just because we throw these terms around all the time we're comfortable with them just generally community property versus separate property how do we characterize those and generally speaking community property is anything acquired during the marriage and there's all sorts of different exceptions and rules but that's what it is something you acquire during your marriage so if mom had owned an apartment complex before she got into the marriage and it was a department complex owned outright worth let's just call it two million dollars and then she gets married and she and stepdad buy a home for two million dollars and that gets paid off during the marriage then which one of those is separate which one of those is community and how would those numbers be distributed so the beginning presumption before you do any other analysis is that the apartment is separate property was acquired before marriage and the home would be community property because it was acquired during marriage and then we have all these arguments about where did the funds come from and was there mixing of assets and all that nonsense but by and large the apartments would be separate and the home would be community starting so the apartment complex would go to the two children of mom 2/3 2/3 would go if the apartment complex would go to the kids one-third at the apartment complex would go to spouse and that's a separate property analysis right and then community property analysis it sounds like mom's kids are gonna be out of luck there yeah entire home goes to stepdad so that's why this is why planning is so important if people are just expecting that the intestate statue is gonna save the day they're gonna be very disappointed because the intestate statue has all sorts of unintended consequences because it just works by operation of law right there's no fairness there's no intent it doesn't matter what mom intended that's the plane you're gonna get right so it can be dangerous all right Kayla next question is I'm married for the second time and we both have children from previous marriages whose children get the house when my spouse dies well we've been talking a little bit about that back and forth and so again we've got to I've got a mom and a dad and they both have children so in this case children both have a stepparent on the other side and then they have their blood parent and so this is the problem who dies first right and what a state plan you do you have in place those are really the analyses that you have to go through so if if mom dies first we know - the survivor if dad dies first then mom's the survivor and then the question is is there any state planning documents that we're gonna look at they're gonna dictate how the assets are to be passed or are we gonna be looking at the intestacy statute yeah I mean I think it depends on what the planning is and I think who died first when's when's the day in most cases your most cases now who dies first now he's probably gonna lose and their kids are gonna lose and whoever lives - lives on them and their kids are gonna win right but you remember we had a case a long time ago where a spouse married couple they had a kid from a from their current marriage but there was kids from a prior marriage and the spouse thought the husband was gonna die first so she took the property out of a trust and put it in joint tenancy right because she thought she was gonna get a hundred percent of it when Dad died right he he was clearly gonna die first and then she was gonna give it to her one son right well lo and behold after she did that she died right unexpectedly and so it all went to dad and then the son of mom sued because he didn't want dad giving it to his other kids right and so these things can backfire on you - if you're not again that goes back to good planning though I mean if you're planning by putting things in joint tenancy and you think that that's gonna work that can backfire on you - right and and while we don't do planning at this firm it seems to me that I mean let's take me for example I'm 45 let's say that I meet somebody and they've got two or three kids and I have my own son right and I get married generally what's gonna happen to my son in that situation well he's probably gonna lose you're some portion of your state if not all of it right and and so at that point in time what's a way that I can plan if I want to be proactive so that I do take care of my spouse who I'm supposed to be dedicated to I think that's a reasonable thing to do I think both spouses should help each other out because neither one knows who's gonna die first also the spouse was the must take care of her family if usually me as example I want to take care of my son so how can we meet all those needs well the first thing I'm gonna say is something that nobody ever finds all that fun to do which is premarital agreement okay that's probably your first offense if you had a premarital agreement you can plan these things out and whatever is separate remains separate and you don't have any unintended consequences the other thing you can do is just a really good trust planning so you can either have your own separate property trust or you can have a joint trust with your spouse or you can have both but planning these things out is very important if you hope to get the result that you're looking for which is you want to make sure your son gets what he's entitled to in your mind what about life insurance how could that be used perhaps to you know resolve some of these issues where people are competing for that for a smaller pool of assets yeah life insurance is great because it provides cash when somebody dies and then that cash can be used to make gifts to pay tax to be able to allocate assets so you don't have to sell something so maybe your you want your son to get a house but you know the other kids of your spouse will be get cash from the life insurance to offset the value of the house it can be a very effective way to develop a good plan so that everybody walks away feeling like they got what they're supposed to so what I'm hearing you say is look have those hard conversations right up front right and you'll resolve a lot of problems down in the future if you just choose to ignore them or just assume that you know that everything's gonna be utopian in the future you're taking risks there because it may not work out the way you think yeah absolutely and you know a lot of people think well it's not my problem it's my kids problem I'll be dead and gone well you don't know how true that is you really are giving a problem to your kids if you're not gonna plan this stuff out and it's not pleasant you're also giving a problem to your spouse so if you really want to leave your spouse and your kids and the worst possible situation then don't plan right and then you know they'll be coming to see people like us well it actually moves us that people don't plan but yeah that's right it doesn't seem that we need to actually promote that because it just naturally happens yeah for years I used to do seminars trying to teach people how to do planning and there was so much resistance people would be like well why should I do this and it cost money and I finally gave up and I just started saying you know what don't do any playing at all lawyers make way more money when you don't plan and paying lawyers a lot of money is a good noble thing that everybody should should be proud to do so there you have it even better than that is what are these sites called what is this Robert Shapiro site where you can log in and create your own trust yeah and then we see people screwing that up as well so yeah because the wording is wrong or they don't set them up properly yet it's a nightmare yeah well I recently went in to see my knee surgeon and I told him I'm gonna do the surgery I told him I knew I googled it I figured it out you were not doctors ooh yeah what I'm Kaila save us from our attempt at humor yes okay the next question is my dad was married to my mom much longer than he was married to my stepmom don't I have more rights than she does meaning the second so I understood this to Keith as that you have a son here and he's saying hey I'm the product of my mom and dad who are married for a very long time let's call it 40 years right okay then mom passes away presumably or is divorced and gone and dad remarries somebody and is married to that for just a few short years and the dad passes away what are my rights as an heir of my parents yeah the child does not have necessarily a superior rights to the spouse even though the spouse wasn't married that long and again it goes back to what did dad do what planning did he have in play did he leave everything if dad didn't have planning or he left everything to spouse then she's gonna have all the rights and the kids are look so just because your parent was married to your mom for 50 years and then second wife was only married for a few years it really doesn't help things one way or the other one thing I'm starting to pick up from these line of cases is that fairness which is a concept that the probate court can take into consideration is that favorable to somebody in these line of cases or is the black letter law more likely gonna be favorable yeah that's the problem as these cases are rarely fair and I think what this question is getting to is I knew my dad for 50 years you know he was my dad he was married to my mom for a long long time and then some interloper comes in they're only married for a couple years and now she gets everything that's not fair but the problem is is that in a state law trust and will law and the way assets transfer we don't really care about overall fairness the law is not concerned about it the courts not concerned about it really what we're concerned about is well what did he do and we assume that whatever dad did he intended to do that's the assumption the law makes so if dad put an investment account in joint tenancy with himself in his new spouse it's gonna pass to her under joint tenancy law and the law is gonna assume that well that's what dad wanted that's why he did it that way and so that's a bad assumption and it's an unfair assumption but it's the legal assumption well let me ask you this what if there's a will here and it's handwritten by dad and it's handwritten two months before he passes and he gives everything to his new bride right and signs off on it you know what are the arguments that the son in this case can make if any at the time of trial well you're stuck with making arguments like a lot lack of capacity undue influence you know those sorts of things there could be others but those are tough arguments because you have to prove them and so you the son has the burden of proving any of those things are true and trying to prove undue influence of the spouse is particularly difficult just because they're married people kind of assume that spouses influence each other but there is case law you know Lintz versus Lintz being the big one fiduciary obligations that spouses a fiduciary obligations and you can't prove an unfairness I mean it's possible that you might be able to prove undue influence but it's not all that likely what we what are your thoughts how would a son attack something like well what we're seeing is that the son attacks based on the fairness and that's because that's what they have and so we've had several trials that we've recently been a part of what we're defending a will under these circumstances where it's maybe the will doesn't make a whole lot of sense but it's a will and it's signed it's valid maybe it has the two witnesses maybe it's a holographic well and what we've seen the opposing side argue is but they have such a good relationship the son has such a good relationship with his father his father would have never done this but is that evidence that the will is not valid no and that's the thing is that they don't wills don't need to be fair they don't need to make sense they just have to be valid in the eyes of the law meaning that the person who created it was of sound mind they signed it and that's what they wanted to do so yeah you could you could go along thinking you won't leave everything to your son but then a month before your death if you're of sound mind you can say you know what I'm gonna leave it all to this charity yeah and well you know everybody might think that's unfair or my law partner that would be fair all right Kayla Kayla's rolling her eyes just for the record yeah right the next question is can my stepmom deplete my inheritance before I receive anything so that's there's two different aspects so that one is let's say you did let's like dad did do proper planning and dad actually did create a trust where assets we call a bypass trust or marital trust where these assets are held for the benefit of stepmom during our lifetime and then when she passes it passes out to dad's kids that would be some good planning and but stepmoms also trusty that bypass trust and she's making distributions out of the bypass trust for anything she wants vacations new cars gifts to friends and get usually gifts to her kids is what's happening right that's right so what rights does dad's children have under that scenario well they might have significant rights because generally speaking in that type of planning you have to look to the terms of the trust but generally speaking those trust terms say that mom's survivors trust her portion of the estate she's gonna have to look to that first and foremost for her for her standard of living she can come over here and invade the bypass trust we call it under the trust terms and it's normally based on ahem standard which is a health maintenance education of support standard which it can still be in a large amount that comes out also the trust terms generally are gonna give mom all the income every single year off the earnings of the bypass trust and that'll be paid usually in four installments they can be more it could be one installment a year but generally she's gonna get all of that so the question here is can she deplete the inheritance to an extent yes she can and again picking on mom here cuz mom's normally the survivor with a Stickley that's true yeah it easily could be dad being the survivor and by the way men and women who survive these in these cases they they react the same way so it's human nature so we don't mean to be pejorative here and just beating up on mom but mom here stepmom is gonna be able to look to the terms of the bypass trust and whatever those terms are she can maximize those terms and yes she can deplete quote/unquote deplete the part of the bypass trust for that but that's why if you really are in a blended family situation and mom does have that survivor stress what can dad put in that survivors trust along with mom's consent at the time that to trust created to make sure that she's using the assets there before she's depleting the assets of the bypass drops well you want to provision the bypass trust that says that that says you have to use the assets out of the survivors trust first so that would be helpful you may want to think about having somebody other than the stepmom be trustee the bypass trust so that there's at least and this is this gets to I mean on the one hand stepmom definitely likes to be in control of the money that's for her benefit and I get that but sometimes just having an independent trustee gives the perception of objectivity even if the results the same so maybe the objective trustees making the same distributions that the surviving spouse would and maybe there are all proper distributions let's just assume they are but because they're being done by a third person all of a sudden it looks appropriate whereas the stepmom took those same reactions everything she does is suspect and and you know you don't like what she's doing and all that so it can be helpful to name an independent trustee I think in those situations but you have to you have to choose wisely you don't want just anybody right by the way I mean when when I didn't planning when I first started planning before we became Albertson and Davidson I remember I had a conversation with surviving spouse she had survived her husband of it was ten fifteen years something like that and there was a bypass trust provision and it required one-half community and all the separate property the husband to go into this bypass trust try explaining that the surviving spouse right that you're gonna have to take one half the community property and put it in this trust that's locked away from you for the most part they don't care that they're gonna get the income off of that right and then also tell them all the separate property is also going into that bypass trust it's not a pleasant conversation to have known as shocking you know it's funny cuz people sign these trusts they should know that when they create the trust it's right there right and it's been explained to them right yeah yeah yep these are these are difficult issues and I think again this goes back to what something you said earlier and that is folks take some time to hire a lawyer for a premarital agreement analysis you don't have to enter into one if you don't want to but at least do the analysis especially in a blended family situation and then also make sure that you're covering all these issues in a trust plan and that's where life insurance can come in to make sure that people get some assets at the end it can be quite expensive though life insurance on somebody like me even you know it forty-five years of age you go in it's not gonna be cheap like it was when you were in your 20s you know the life insurance is a really good point too because what that really brings to my mind is it's not all about trust so you talk to people about state planning you should do a state planning and what you hear back is or I already have a trust it's taken care of right well a trust is not an estate plan it's a tool that you use as part of your estate plan but it's not a plan in and of itself there are other aspects to that that's right and so a trust is like a hammer so if I'm building if you tell me you know you need a house and I said oh I don't need a house I have a hammer well hammers not a house right hammer is a tool you use to build a house right not anymore and I use nail guns but same thing same difference so just because you have a trust or will your jobs not done you need to think about the overall perspective of what you're doing how it's all going to work if it all works together and coordinates those are the tougher issues and that's where if you're not careful you're gonna run into some big problems yep all right Kayla what's next so we had a question earlier about whether the stepmom or surviving step parent is required to give you a copy of the trust we had a question come through Facebook about whether the step parent is required to give you an accounting so that's good that's a that's a fun one so I guess let's make sure we everyone's on the same page here so dad has died my stepmom is refused to give a copy of the trust at this point in time and then the question is well I needed a county to see what the assets are naturally okay so so how do we attack how do we crack this nut we're gonna go back to what we've been talking about before which is what's the plan how was it planned out so if dad gave everything to stepmom and it's just hers out right then no you're not gonna get an accounting you're not there's no mechanism there's no rights to an accounting under that scenario if it's in a trust and the trust is completely revocable by stepmom there's no bypass trust or anything like that no you're not going to be entitled to and counting if the when the trust is revocable any portion of the trust that's revocable you're not going to get an accounting as a child okay but let's say there's a trust and stepdad her dad before he passed away made sure to include mandatory funding of a bypass trust where one half his community property would go into that trust and all of his separate property would go into that trust and then there would be a survivor's trust created for the stepmom her one half the community would go in there and presumably any separate property she has goes in there as well so now you're getting to a point where you are have some accounting rights right and let's say that we do go ahead and take that risky decision and say no we're gonna compel a copy of the trust in this case you compel a copy of the trust and thankfully you see this mandatory bypass trust which is good news for your client can you now compel an accounting of stepmom yes so you can compel an accounting and the irrevocable bypass trust portion because once it becomes irrevocable then the surviving or the beneficiary's even though you're not vested yet well let me let me take a step back technically speaking the only people who are by right entitled own accounting are the current beneficiary so if the spouse is the income and principle right now beneficiary then the kids aren't technically entitled to an accounting but they're entitled to all of the information which essentially is its it'll get you the same location as an accounting the kids also can request from the court an accounting and more often than not the courts going to order an account that's right so it the quote from a practical perspective can I get an accounting in the bypass trust if it's irrevocable yes yes and if even if you can't get in a County you can get all the financial information it's the next best thing so you'll be able to determine what was funded into that bypass trust when it was funded what the assets consist of and what happens to the assets after they're in the bypass trust so all of that could be accomplished but probably not voluntarily if you're dealing with somebody who's just being completely difficult and doesn't want to talk to you then there's a good chance your head in the court to make all that happen all right so let's say that you you did get a copy of the trust terms there is a mandatory funding in the bypass trust you even get stepmom to give an accounting which she also lets you know she just inherited you from her survivors trust right okay but now you did you know you've locked in whatever it is you had your rights are in the inheritance of the bypass trust and let's say that stepmom is relatively young she's maybe at 50 55 somewhere in there she's still gonna live for the next 20 25 30 years and let's say that you're in your 50s - you're about the same ages as your stepmom is there a way to have everyone come to the table and do some horse trading here or do we have to wait until stepmom dies which the bypass trust is more than likely going to require right you're not gonna get anything for the bypass trust and tell mom stepmom passes away is there a way that maybe everyone can figure out a way to get some money in this situation and our experience yes so legally speaking no there's no absolute there's no right for the children to get something now but when you start going down the road okay fine stepmom I want in accounting I want to know what was allocated I want to know how you're managing it I want to know if you invested it properly because you know maybe not and probably not in a majority of cases you're asking some very tough questions that come with some very tough liability if the answers are wrong and that's when you get into a situation where you can start saying tell you what rather than us going down this road and picking everything you do we can value these things we can actually value a life expectancy we use the IRS tax tables you put a money factor on it it's all right there and I can tell you today what the present value of the mom stepmoms life estate is worth and you can slice that off give that to her give the rest to the kids and just be done with this and separate the parties so that they're not fighting for the next 20 years okay and how is a court how is a court in California going to review the request of trust beneficiaries if they're a petition the court and say hey we'd like to basically we want to in this trust as far as the bypass trust goes and what we've agreed just we're gonna carve out a certain amount and give it to mom and mom's gonna let us have the rest and everyone's gonna move on their merry way how is the court likely to receive that practically speaking in our experience courts usually have no problem with that especially if you're settling a litigate and this is the settlement result so if you're fighting over something and you come to a settlement that's one Avenue where the courts can be very receptive to that there's also provisions under the probate code where you can modify any revocable trust there's changed circumstances there's a provision that says you can terminate trust if all the beneficiaries agree there's various ways to go to go about it but basically what you're doing in court is we're gonna fight this out for a very long time or we can settle it and have a result where everybody walks away and they don't have to fight about anymore the courts gonna be pretty receptive to that would you agree I that's been our experience yes yeah and then and that's something you would want a court confirmation on in my opinion we want to get yes we want to get a the court to review this make sure you know everything looks right and then give us a court order on it and that way there's nobody else that's gonna come back later on and try to say that you know they somehow they weren't notified or whatever the case may be yeah you want to make sure that it's all buttoned up with a court order and plus you may have to because a lot of times the assets might be in a bank account or with a life insurance company and they may refuse to release the assets until you have a court order right which is what you can do with the settlement yep all right miss Kayla all right this is our last question today what if my step parent changed my mom or dad's will or trust right before my parent passed away well this really is no different from if anybody else changed it right I mean if stepmom are dead let's say a week before your dad dies stepmom comes in and originally it was gonna go to the you know you have two siblings so it's gonna go to the three of you equally and now it goes 100% to stepmom what what's popping into your mind in terms of how you would address that well it's undue influence for certain but I I think I have a little different view of that than you do and I don't I I think the reason is is because it's coming from the wife or the husband in this case and I think courts give a little bit of deference to the wife or the husband compared to a sibling that exercises undue influence or some third party a neighbor a caregiver I think for some reasons spouses are in a special place and that's where these are particularly difficult cases yeah too from an undue influence standpoint no I think I would agree with that I think it is a little bit harder to prove undue influence of a spouse even and even if it's done a week before death because their spouses and you know though I think you're right number one I think most judges in most courts are gonna give some deference to a spouse remember two spouses have a duty to support one another and I think a lot of courts are not gonna look kindly on a spouse being kicked out in the street if all the assets are gonna go away well let's be honest here number three I would add to that is spouses impliedly consent to unduly influence each other and I well maybe but III do think that as long as there's capacity I think when you were partnering up with somebody in that fashion you're marrying somebody or becoming their their domestic partner or whatever the case may be you're you're doing something above and beyond what you're required to do and I think the courts gonna look at that and say that was your choice so we're gonna try to follow that to the best of our ability right now that's the funny thing is that what we're saying is not necessarily the legal standard but it is the persuasive standard and you know in order to win a will or trust contest you have to persuade a judge to overturn something that the law presumes is valid correct you have a burden and if you don't meet that burden so it's a persuasive problem although it's not impossible I mean they're certain we've certainly had cases I can think of a handful of cases where we've been successful in going after a very bad step parent but those were pretty egregious cases they are you know where in fact we had one where the lady married dad but she was technically still married to somebody else what's apparently is illegal you can't be heard of more than one person not in California okay this is not yet this isn't our consume not yeah hey hey hey we love Arkansas but the problem would be slow easy Anna yeah right yeah sorry Louisiana but there are some egregious cases where you might be able to gain some traction with those arguments but they tend to be the tougher ones for sure yeah well on that note do you have any other questions Kayla are there any other states we can offend all right yeah yeah let's go through them let's go through our next segment which is our opinion and there's one other issue that I want to address that has to do with this topic and it's an issue that you can find in one of my favorite books stand fight win written by Keith Davidson Stuart Albertson I know those guys and so in this book we talk about various hypotheticals and one of the hypotheticals have to do with a family business where you have a step parent who unwittingly or unknowingly between the parties ends up as being a person who receives either a third or maybe all of this business because there wasn't proper planning done and it brings up a very specific issue that a lot of people don't know about and that's called omitted spouse so if you create a trust or a will on one date and then after that you get married your new spouse becomes an omitted spouse and has rights inheritance rights even if the trust or will that you created doesn't give them anything okay right so let's go through an example all right so let's say I create a will and in my will I say I leave all of my assets to my two sons okay let's say a year later I get married and I don't change my will don't do anything about it and then a year after I get married I die okay what is my spouse and let's say all everything I have is separate property so but I wasn't married long enough I didn't acquire anything during the marriage it's all separate property so my sons see the will says Oh the will says we get everything doesn't name the spouse so my sons will be thinking it with the spouse must get nothing what do you think so the white is gonna step forward here say no I was omitted because this was an estate plan that was created prior to marriage and since I'm an omitted spouse I have a claim to the estate assets and it's an intestate claim so you the spouse would get an intestate share just as if there were no will at all even though there is a will and so four separate property since I have two sons she'd get a third it gets worst about a community property so if I had a will before I was married everything goes my sons I get married i acquire a bunch of property during the marriage it's community property and then I die again the spouse would be an omitted spouse her intestate sheriff community is a hundred percent of the community she takes everything and the kids get nothing right and I think that's a really surprising result I've talked to people who are in that unfortunate position before and they just can't wrap their heads around how could that be possible I mean if you create a will leaving everything to your son how is it possible but that's not what we're gonna follow right and I guess the presumption is and I don't know if it's a good presumption or not the presumption is that you didn't have the opportunity to update your will after your marriage and so now let's change the facts up a little bit let's say that the will is drafted a day after you got married and it leaves everything to your sons how would the analysis work them then it's not a no minute spouse then the presumption is you knew you were married you just got married if you left a will leaving everything you know your share of everything to your sons you must have done that knowing that you'd be excluding your spouse and so the separate property all the separate property goes to your sons under that scenario yes and one-half year community property goes to your sons in investing REO that's right okay so that's I mean think about just the timing is the issue there and I think you're right I think people are surprised by that because I I can already hear what a client would say well I already did my state plan right and now I'm getting married oh yeah I already took care of that yeah my kids are getting everything that's all my trust her will says why do I need to change it and I don't remember in the book I think that this was a case that we had worked in the past and it was a family business that the sons we're gonna continue to run right and here mom is like oh yeah you know give me what I'm doing yeah stepmom says hey I'm entitled to something here because there wasn't a subsequent well done and I guess the policy behind this omitted spouse rule is if somebody creates a well and they later get married the law presumes that that person certainly would have left something to their spouse had they updated their will right and because they didn't update their will we're going to make an assumption a very heavy assumption that the spouse gets something now there's two things you can do to make sure that omitted spouse doesn't affect your estate one is you can just create a new estate plan after you're married was an amendment work an amendment does work okay so you can do an amendment you can also do an amendment right before you're married but you can reference the marriage so as long as you say hey I'm about to get married but I want this trust or this will to apply even after I'm married and I do not want my spouse or my future spouse to receive any of my share of the estate then you're fine my you're marrying this person I have no idea but go ahead and that's if you don't want them to have anything after you're gone I'm not sure why you're marrying them but okay I mean yeah Who am I to question the ways of love yes right but it is interesting that it's a very very important this goes back to planning again not only is it important that you plan and do these things properly but it's important that you update it and change it with major life changes and I think that's the the point here but omitted spouse I actually had a case it's a while ago now about eight years ago where it was actually a mitad child which is the same scenario and you create a will you have a child and you don't update your will the child is gonna get an intestate share and it was the first time I've ever been able to use that to our clients benefit because he was an omitted child and we did get him a share of the estate and it's such a strong argument because it's just a right under the law and there's no if ands or buts about it right as the way it is right and so it can really come back to bite the children in the rear if they're not careful and and that's something that you really have to watch out once again this all comes back to and we've been talking about it all day is do the planning do take the time to do the planning it's gonna be much less expensive it's also going to be less time intensive to do it right to get it set up and then like you say when the major life changes do take place marriages having children starting a business acquiring assets that are significant in value those are the times where you're going to want to just run it past your estate planner and say how does this impact things right and then your estate planner can let you know what they what you need yeah that's exactly right and then for those people who don't do planning if you're going to calls you know somebody like us our law firm and say do I have rights in this situation it's not an easy question to answer there's a lot that we have to dig into before we can figure out number one what your rights even potentially are and then number two how to enforce those rights so it's not a black and white issue it's not a quick question it's a complicated mess usually that has to be unwound so it's not it's not easy to attack one last comment I'll have and that is I don't know what it is it's 80% of us will not inherit a whole lot from our parents after they're gone and so the 20% or so people that are gonna have these fights just remember you're in a you're in a good group of people there's assets to go after and so you know I guess there's that at the end of the day because most people will not inherit a whole lot they just simply are gonna be able to do well based upon their own work and effort yeah that's right so I mean it's a it's kind of a good problem to have don't you think it is a good it's a good problem to have it's a frustrating problem half it is until you look at it from a relative standpoint and that is there's assets and most people don't have that opportunity and so you have an opportunity to to do this although I will say and we just had a mediation this last week Keith where some kids two children were excluded from their dad's trust at the last minute but in two days of them dying and for them they got a money settlement it was it was a very significant money settlement in the case and the money was just a proxy as you call it it was them knowing that their dad didn't disinherit them right and love them all the way to the end right and even though they had had a challenging relationship from time to time they had a good relationship with their father they loved their father and so now they walk away with this with their heads held high knowing that dad didn't intend to do this some bad actor came in and did some things they shouldn't have done and so now I know I can rest at ease knowing that my father didn't do these things that's the heartbreaking part of these cases that dad never intended this right that's what you're right into right well I think our lovely paralegal Kayla say goodbye Kayla so she works with all of our incoming clients and Stewart you might be surprised to know that the last probably half a dozen new clients that came into the firm told me they really enjoy working with Kayla well I I don't think they know Kayla well then I think they need to get to know her a little bit like we do and then we've got Manisha who is head of marketing here and she's over here yelling at us and screaming and she keeps us on task so I'm she's also watching all the Facebook questions and making sure that we answer anything that comes in and she put together all these other questions that were asked of us before we went live today I won't let you know that you can find this broadcast live on Facebook and YouTube every week where you do our live stream you can also find a recorded version of this on Facebook and YouTube after the live recordings they stay there forever and always and you can always find an audio-only version of this live stream on our stand fight win podcast which you can find on pod beam or iTunes I remembered it this time very good thank you for joining me Stuart Thank You Keith and we'll see you next time see you next time.