With regard to estate planning, one problem Judge Eugene Hyman sees involves what's referred to as life estate, where a property can be used by the person while alive and once no longer alive, the property usually reverts back to the children. The problem is, he says, is that if you're giving someone a life estate, you have third party beneficiaries and those people are entitled to inspect and express concerns about the property. In addition, when there is remainder interest, they can take that person with life estate to probate court and raise any issues they may have about the property.
A retired Superior Court Judge in Santa Clara, California, Hyman says that if there's a bad relationship between the children of the first marriage and the wife of the second marriage, that can be a form of harassment and ultimately result in the asset being sold in a settlement to eliminate the problem.
Another area this issue can come up is in retirement accounts, Hyman says, because from the date of the marriage, if you don't have a prenuptial agreement with respect to wages, there's going to be a community property interest in that retirement account.
Hyman believes a better way to treat something like that in a will is not to give the asset but a certain amount of money is transformed into an asset rather than giving the asset itself.
Hyman advises that if you really have significant assets, you need to have both an estate lawyer and a family lawyer giving you advice to make sure you're doing exactly what you want.
Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. For more information on the article in the Wall Street Journal, click here.