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Questions Answered by Jeffrey Louis Gaffney
2 Answers | Asked in Estate Planning and Probate for California on
Q: Hi...I live in California (LA County). My wife was the sole beneficiary on her older brother's 401k account.

Her brother died of Covid on January 19th. My wife then died of Covid 4 days later. What happens to the 401k account? Her brother had a daughter, but she wasn't listed as a beneficiary. Does the 401k pass to the daughter, or does it go to my wife's estate?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Mar 29, 2021

It should go to your wife's estate.

A Will or a Trust normally has provisions regarding this sort of situation, but unless the 401K administrator had the brother sign something unusual, then the money would still go to the estate of your wife. But check with the administrator.

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2 Answers | Asked in Elder Law for California on
Q: Mom with Alzheimer in assisted living. I'm trustee of the trust. Sister needs to be appointed Guardian of medical.

In california, can my sister be appointed just guardian of living/medical conditions? Mom definitely cannot be at her home.

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Mar 13, 2021

In California you need to have your sister appointed Conservatorship. There are two ways to do it: of the Person and of the Estate. The Person is way easier and will take care of all you say you need.

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3 Answers | Asked in Estate Planning and Probate for California on
Q: I'm in Calif. and I'm doing a Revocable Living Trust. My grown kids are Trustees. Do they have to sign this doc?

I'm confused about how many people need to be in front of my Notary Public. My wife and I as "Grantors" - OK .

My grown kids ??? Both of them are named in the document as Successor Trustees or just trustees. Please specify if all of need to be present in front of the Notary during the signing.

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Mar 2, 2021

Grantors and Trustees.

Nobody else gets a say in the matter.

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2 Answers | Asked in Estate Planning for California on
Q: California - my mother plans to leave me her house (paid-off) when she dies, what taxes will I need to pay when I sell?

She's setting up her estate planning with a lawyer in Nevada where she lives.

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Feb 26, 2021

None. Ish.

When she passes the house to you, it gives you a stepped up basis with regard to capital gains taxes. Her tax basis was what she paid but yours will be what the value was when she died (good for you financially). So you will only be taxed on any gain from the date of her...
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1 Answer | Asked in Estate Planning and Tax Law for California on
Q: Can I gift shares to my daughter for estate planning?

I just started a company (a Delaware C-corp). It is worth basically nothing at this point since it just got started. There are no investors so far, so I own most of the shares in the form of restricted stock that has been early-exercised. The shares will be vested over 4 years.

I have a... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Feb 9, 2021

One solution I have seen is to issue her non-voting shares. These will have 40% less value than a regular voting share because they have no control. That would allow you to give them to her at $25,000 per year without filing a gift tax return.

5 Answers | Asked in Estate Planning and Probate for California on
Q: In the state of California, if the decedent has 6 surviving children and no will, how is the exe or admi determined?

6 children, no will. Does oldest child automatically become administrator of any estate? If yes and other children wish to contest that appointment, is that possible?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Feb 1, 2021

Being the oldest doesn't help. Someone petitions the Probate Court to be the administrator. If the siblings object then the judge will yell at them to find a solution they can agree on, like even a professional service.

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1 Answer | Asked in Estate Planning and Real Estate Law for California on
Q: Purchase new property in title of a joint trust with unmarried partner?

I'm looking to purchase a property with my partner in the name of a trust to improve our privacy and create the framework for future estate planning. We're unmarried with no kids or other assets. Is it acceptable to have a joint living trust for an unmarried couple in CA? Does this... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jan 22, 2021

Yes, you can make a joint trust even if you aren't married. That is the best way to do things if you are together and want to take care of each other after one's untimely passing.

2 Answers | Asked in Tax Law and Estate Planning for California on
Q: What is the exempting language under R&T code 11930 for transfer tax purposes?
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jan 21, 2021

I am not sure exactly what you are asking, but if when I transfer property into a living trust I write on the deed "Transfer to inter vivos trust per Cal Tax & Rev Code 11930". I put it near the transfer tax line.

Depending on the county, they may also want a Transfer Tax...
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1 Answer | Asked in Elder Law and Social Security for California on
Q: Do I go to a County attorney to turn in elder abuse , neglect and miss use of retirement fund's

It looks to me as if he suffered during his death

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jan 12, 2021

Start with Adult Protective Services. I have had great luck with them and they will refer it to the office it needs to go to.

4 Answers | Asked in Estate Planning, Real Estate Law, Tax Law and Elder Law for California on
Q: An elderly neighbor offered to will me her home if I managed her care for the next few years. What are the issues here?

My elderly neighbor's husband just passed, and she finds herself overwhelmed by paperwork, by legal matters, and so forth. She is getting quite on in years and has no living family. She offered to will me her home if I would become power of attorney on her behalf and helped manage her affairs.... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jan 5, 2021

The main issue is that it is not enforceable. Also, you are trying to take payment for something without calling it income.

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3 Answers | Asked in Estate Planning and Probate for California on
Q: Is power of attorney all that's needed to get access to deceased mothers bank account

My mother recently passed away. I have a will and a power of attorney signed by my mother. I am her sole survivor. The bank will not allow me to access her bank account saying that I need to go to the county and get a small estate affidavit and/or appointment papers as the... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jan 2, 2021

No. The power of attorney lost its authority when your mother passed away.

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2 Answers | Asked in Estate Planning for California on
Q: How can I get a copy of a will filed in Orange County court, to know the beneficiaries of the descendent’s estate.
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Dec 30, 2020

Just go to the courthouse (the county Probate court should work best) and look it up on their computers. You should be able to search the Probate files with just the name of the deceased; if not the clerk can help you. Then look at the File and print up the Will that was entered into the court.

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2 Answers | Asked in Estate Planning for California on
Q: Approximately how much does it cost to put a property in a living trust? Thank you.
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Dec 28, 2020

If yo ualready have the trust, all you have to do is make a new deed and record it with the County Clerk. The clerk will charge you about $25 if it is your residence and $100 if it is not. If you want the deed written for you then it is probably about $250.

If you need the trust written...
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1 Answer | Asked in Elder Law for California on
Q: My mother in-law needs to be confined to a locked facility how do I help my wife file conservatership

What does my wife need to prove to the court and what is the best type of evidence for my wife to provide the courts to show the that her mother needs to be confined for her safety and the safety of others(her mother has he her liscenae revoked but still drives when she shouldn’t she stops in the... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Dec 4, 2020

A Conservatorship is filed in the County where she lives. You can ask the judge for special powers to put her in a facility where she can be kept from wandering, but your doctor has to support it and the judge won't want to do it unless it really is the best thing for Mom; the same procedure... Read more »

2 Answers | Asked in Estate Planning, Real Estate Law and Tax Law for California on
Q: Can a husband leave real estate to an adult child instead of his spouse so it can be sold without capital gains taxes?
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Oct 31, 2020

The husband can leave his half of the community property and all of his separate property to whomever he wants.

It won't matter for capital gains who he leaves it to though. That person, spouse or stranger, will inherit the property at a stepped up basis (erasing the capital gain...
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3 Answers | Asked in Estate Planning and Probate for California on
Q: If my father left me money in his trust, can the trustee change that trust when he passes away
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Oct 29, 2020

No. Absolutely not. The Trustee must follow the instructions of the Trust.

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3 Answers | Asked in Estate Planning, Real Estate Law, Tax Law and Probate for California on
Q: If I inherited my father's house after he passes, and I sell it, do I get hit with capital gains tax?

My father owns a house outright in California. I am the only child, and the house is in trust to be inherited down to me. My mother passed 2 years ago. If I in turn sell the house after my dad passes, do I get hit with capital gains tax?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Oct 19, 2020

There will be no capital gains tax on inheritted assets, except on the gains since you inheritted the asset.

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4 Answers | Asked in Estate Planning and Probate for California on
Q: If I'm a Mexican citizen and my mom died in CA without a will in place... can i claim her property?

My mom passed 5 years ago. I am the oldest, I have 3 half siblings that are US citizens, i am not. Mom left no will. The house was paid for. No taxes are owed.

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Oct 13, 2020

If mom died without a Will (called dying intestate) then the Probate Court has to approve the disposition of her assets. Someone has to go to the Probate Court where she died and start the proceedings. It won't matter where you live. Her assets will be divided per the law which generally... Read more »

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3 Answers | Asked in Elder Law and Estate Planning for California on
Q: My 89 year old father (widower) in Arizona wants to set up a living trust for his mobile home and car.

My father still has a small mortgage on the home. He already has a Will and Durable POA. He is interested in creating a mechanism such as a living trust by which his home and minivan can be transferred to me as his sole heir without the necessity of the property going through probate. His Will... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 25, 2020

A Living Trust will not solve the payback problem anywhere except California. In the lesser States it requires an Irrevocable Trust.

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