Legal Question in Wills and Trusts in California


My father and stepmother both have dementia and are in a care facility. My stepbrother-in-law is their financial executor and pays their monthly expenses with their retirement and SS. Recently, my father's mother passed away, leaving some money to her three children. The executor of the estate is my uncle, he wants me to keep this money for my father, for his future needs. My father is 13 years younger than my stepmom and may very well need this money for future medical expenses. Is there a way to leaglly accomplish this? What about capital gains? The money was left specifically to my father, but I know being married, changes that.

Asked on 4/10/09, 12:01 pm

2 Answers from Attorneys

Michele Cusack Pollak & Cusack

Re: will

The first step is to review (preferably, to have a lawyer review) your grandmother's estate planning documents. If she had a living trust, it may specify what a trustee can do with the share of a beneficiary who is legally incapacitated (i.e. dementia.) This is less likely if she had only a will, but in the probate process, the executor may be able to request that the court approve establishing a trust or special needs trust for your father.

Even if your uncle has to turn your father's inheritance over to the stepbrother-in-law (is he your father's conservator?) an inheritance is separate property and should be used for your father's care rather than your stepmother's care. Your uncle should consult an attorney to determine the best way to proceed.

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Answered on 4/10/09, 12:45 pm
Scott Linden Scott H. Linden, Esq.

Re: will

Sorry to hear of your grandmother's passing and this new problem that has arisen. Here is my take based on the information you provided.

A specific gift will not change the character into community property unless comingled with other community assets (then there is a doctrine of transmutation that will cause it to be seen as community property unless the funds can be directly traced).

There may be an effect on his Social Security, but I would need to lookinto it further with the SS office.

It would seem that making an irrevocable special needs trust may be your most viable option.

If you would like to discuss this matter in a more private forum, please feel free to contact me directly at the email provided by LawGuru or through our firmís website located at

Please Note that this answer does not create an attorney-client relationship. The answer is solely based on the information provided.

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Answered on 4/10/09, 3:46 pm

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