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What Happens If Only One Trustee Is Named?

Occasionally we see cases where a parent leaves all of their assets to a child with the understanding that the child will share the assets with the siblings. For example, a parent may name one child as a joint tenant on a house or bank account, and then expect that the asset will be shared equally with all the children.

The problem is that the one child need not share, legally speaking. In fact, under California law the surviving joint tenant is automatically presumed to be the sole owner of the property. That means all the assets held in one child’s name jointly with the parent, does not have to be shared by that child. This can create a powerful incentive for the child to change their story after the parent dies.

You can take action in court to set aside such transfers, but it is not easy to do. The law presumes that your parent wanted the asset to pass to only the one child. It becomes your burden to prove otherwise. You must present witnesses, and preferably documents, to prove mom expected the assets to be shared. In most cases, there are no such documents because families rarely document their desires in this way.

It is far better for the parent to watch our videos and read this article before leaving all assets to a single child. By preparing a proper estate plan (Trust and/or Will), the parent can leave the assets equally among the children without anyone having to prove anything.

Doing a proper estate plan is far better for the children as well. It can be a burden to be the one child who is left all the assets. Not only can there be misunderstandings with your siblings, there can also be negative tax consequences when you pass the assets out to the other children.

In the end, if you want to leave your assets to your children, then you need to have at least a Will, and better yet a Trust, that states your intentions. If you try to do it the “easy” way, you will create a far bigger mess for the children to fight over after you are gone.