Sole And Separate Property

[Bureig]

I am married and purchasing a home in my name only. My parents are helping with finances and want to ensure that in case of my death or divorce the property goes back to them. I am drafting a trust, have a pre-nup which states what is in my name stays mine, what is in his name statys his, he will be siging a Quitclaim form, I will be drafting a promissory to note to my parents promising to pay them back. Is this enough to ensure that this home remains my separate property in California?

Also, are the do it yourself forms for living trust reliable and will hold up in court?

Thank you!

ANSWER: Hello,

It may have been a lot simpler to own the home JTWROS where you and your parents are all joint tenants.  It avoids probate and will accomplish what you want.  The general rule is that separate property stays separate property unless it is co-mingled.  What is it you hope the trust will do?

I can't give you legal advice. If you want to know whether what you are doing will hold up with respect to the home you need to consult an attorney.  Is there a reason you are trying to do all this by yourself?  

As far as downloadable forms go - you get what you pay for.  Some of them are fine while others are not.  It is impossible to know without knowing the laws in your state and what's in the document.  I'm not an attorney and I do draft many of my own documents.  However you won't know if it doesn't work until its too late.  Therefore I use attorneys sparingly.  When it comes to someone's death or disability that's where I draw the line.  Divorce is even trickier.

---------- FOLLOW-UP ----------

The main purpose of a living trust is to assign my parents as beneficiary. Won't the living trust avoid probate court? Thank you! I'm looking into the JTWROS!

[Chuminga]

One quick warning.  If you, as one the "tenants" in a joint tenants with rights of survivor ship own property that property in Texas would be community property.  California works the same way(I think).  You obviously already figured out that having something in your name only doesn't make it separated property.  see http://en.wikipedia.org/wiki/Concurrent_estate

A title company can change the ownership with a simple document for you.  Also you can get cheap legal advice by going through your local bar association referral service.  Anyway JTWORS does what I think you want, but you will need a separate property agreement to insure that your share will never be subject to any claims by your husband.  Unless you're talking about a lot money it may not be worth the hassle to divorce proof the equity in the house.  Good luck

Don't be afraid of attorneys, remember its only 95% that give the other 5% a bad name!!!