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Questions Answered by Jeffrey Louis Gaffney
4 Answers | Asked in Estate Planning and Probate for California on
Q: Hello, my sister recently passed away. She was married but bore no children of her own. She did have two step sons that

she helped raise. I am trying to find out if she had a will. My question is this...does her part of her "estate" automatically go to her husband with or without a will? She had mentioned to me that she had intended to leave her "half" of her property to my children "her only niece and nephew." I... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Dec 1, 2019

If there is a Will then it has to be submitted to the Probate Court; it is a crime to hide one or destroy it (though probably impossible to prove that).

Contact the Probate Court for thee County where she lived and see if a Probate case has been opened. If there has, then you can view the...
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1 Answer | Asked in Estate Planning, Real Estate Law and Elder Law for California on
Q: Additional questions to: What is the cost of a POA in CA? My sister resides in CA, had a stroke in July, in rehab in CA.

Thank you for your previous answers. Ms. Whitehurst, what other "eventualities" are you referring to? And, Mr. Gaffney, so, is it necessary and/or advised to obtain a physician's letter stating she has "the mental capacity to understand what she is signing"? We are also awaiting approval for SSI... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Nov 14, 2019

If a person has some impairment, then you are right to worry that someone may later claim that they did not have the capacity to sign the document. We usually work the other way around (getting a doctor to say someone is incompetent), but I like your defensive thinking in making sure that she has... Read more »

3 Answers | Asked in Estate Planning and Real Estate Law for California on
Q: What is the cost of a durable POA in CA? My sister resides in CA. She had a stroke in July; now in rehab facility in CA.

I need to obtain a POA for her. I'm in Florida. The only assets she has, to my knowledge, are 2 cars (in CA), a bank account (in CA - don't know if anything is in at this point) and some land in FL (which she was considering selling before her stroke). She also as a list of credit card accounts. We... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Nov 13, 2019

If she is in California then you need to do it in California, because she has to sign the Power of Attorney in front of a notary.

The big question is: Does she have the mental capacity to understand what she is signing? If she cannot, then the PoA will do you no good and you need a...
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1 Answer | Asked in Estate Planning and Probate for California on
Q: How to find out what is being done with my grandmas estate she died with out a will

My dad docent ask because he don't want his sister mad at him and the other brother which has money says he's taking care of it . How do I find out what is being done or not done

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Nov 9, 2019

If anything is being done then there should be a record of it at the Probate Court for your county.

If someone dies owning real estate or having assets over $150,000 then someone has to open a case with the Probate Court (generally), and those records are public.

If she had less...
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2 Answers | Asked in Estate Planning for California on
Q: irrevocable trust questions it possible to attach some information regarding this irrevocable trust ? I need help under

i need help understand one of the paragraphs

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Nov 8, 2019

I don't know if you can upload it, but you can send it to me at jeffgaffney@earthlink.net.

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2 Answers | Asked in Elder Law for California on
Q: Can a home be sold without a joint owners agreement?

My father has Dementia and does not want his house sold..his wife's family listed it without his knowledge

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Oct 23, 2019

Not without some authority granted to the other owner. She would need to hold a conservatorship of him from a court, or a Power of Attorney that he signed when he still had the capacity to do so. If the house was held in a Trust, then the Trust might grant her authority over the property,... Read more »

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1 Answer | Asked in Estate Planning for California on
Q: If a beneficiary on a savings account differs from those in a will ,which beneficiary prevails?
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Oct 19, 2019

Your terms are a bit mixed up.

A savings account does not have a beneficiary unless it is an IRA or 401K. You can name a "pay on death" person though. In either case, the bank paperwork will prevail, but try no to leave those kinds of confusing questions behind!

2 Answers | Asked in Estate Planning and Probate for California on
Q: is there a way to get a copy of a will from the courts or something?
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Oct 17, 2019

Yes, once the Will has been filed ("lodged") with the Probate Court it becomes a public record. You can just go to the Probate Court in the county where the person died and look it up.

If the person is still alive, then no -- it is a private document and no one has any right to see it.

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1 Answer | Asked in Estate Planning for California on
Q: Thank you, Mr. Gaffney. It is an odd situation.

The plain answer is I don't know. That's why I called for a wellness check and Adult Protective Services. Last week I learned of her having signs of dementia a year ago. It was expressed to me by a family member that she may pass and no one finds out, and he would continue to collect her social... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Oct 14, 2019

Also look out for "undue influence" in changes to the Will or Trust, leaving everything to the brother. It may be reasonable if he took care of her, and if he is the neediest, but it can also be taking advantage of a sick old woman. Just keep an eye out.

1 Answer | Asked in Estate Planning for California on
Q: Who do you contact if the trustee won't communicate?

I appreciate your time and information, Mr Gaffney, thank you. I assume my brother is sole trustee. We have no relationship. I have gotten no response from mail or phone to my mother (I live in Kentucky, she lives in California). I have done a wellness check through the police. I have reported... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Oct 14, 2019

It is VERY unusual for any agency to have a copy of a trust. it is possible so you can check with the LA County Recorder's office, it is just never really done. The Trust company would be a better bet.

Are you worried that your brother is mistreating your mother? That will be a tough...
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1 Answer | Asked in Estate Planning for California on
Q: Follow up

Thank you, Mr. Gaffney. So then my hope that the original trust from the 70s or 80s might be valid isn't a possibility? And because I didn't try to prove my father's inability to be of sound mind in 2002, that point would be mute? My understanding is that when she dies I should have access to... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Oct 14, 2019

The original trust might still be the controlling one if your dad did not have the capacity to change it. But maybe that trust gave your mom that authority if your dad was no longer able. You really have to see the trusts and read them, and compare that to your dad's health.

When your mom...
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1 Answer | Asked in Estate Planning for California on
Q: How do you find the current status of a trust? And do I have any right to contest it?

In the late 70s or early 80s, my father told me that I was sole trustee of my parents living trust, and everything should be split equally between my brother and myself. I never saw that trust. In 2002, after years of my father's Alzheimer's (I have no medical records), my mother (and he) made a... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Oct 14, 2019

Well the problem is two part.

You have no rights at all to see your mother's new trust while she is alive. Upon her death then you will have the right to see it.

The other problem is that your mother probably had no right to change her trust after your dad died. In those old...
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3 Answers | Asked in Estate Planning, Civil Rights, Elder Law and Probate for California on
Q: I'm about to sign POAs with my daughter for both health care and asset management. I trust her. But if she dies...

I'm doing estate planning. If she dies, and I become incapacitated, who decides that I am? And how would that decision be made?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Oct 11, 2019

Check the forms you are signing. They should have a place for you to appoint a back-up person or two, who can take over if your daughter is unable or unwilling.

For Powers of Attorney this can be a little scary. I always write the Powers of Attorney to only be effective if my client is...
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1 Answer | Asked in Estate Planning, Real Estate Law and Probate for California on
Q: How is this my negligence when I went to record the deed and found all of this out from the recorder's office
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 28, 2019

You should have recorded your deed right away, so that you had "staked your claim" for the public to see.

2 Answers | Asked in Civil Litigation, Contracts, Estate Planning and Real Estate Law for California on
Q: My mother and father signed a grant deed to our family home to me before mom died now my dad is trying to sell it

My parents were divorced and the house was moms. Father remarried another woman ten years ago . Hes claiming to be a widow his wife is alive and thats a lie. I am my mothers only child and rightful heir to her estate . My because my mom signed my grant deed to transfer my home to me and I found... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 28, 2019

Was your grant deed ever filed with the County Recorder? If your deed is valid, then you need to have it recorded in order to show the world that you have clear title, and that your father does not.

When the title company goes to complete any transaction that your father makes, they will...
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1 Answer | Asked in Estate Planning and Probate for California on
Q: My wife's father passed away about 3 years ago in Puerto Rico. We live in California.

Can we get a copy of the will? Is this public information?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 26, 2019

Yes, the information is public. Contact the Probate Court for the County where he died and they should be able to provide you with a copy.

2 Answers | Asked in Elder Law and Estate Planning for California on
Q: Have parent w/memory issues but won't go/talk to doctor for a diagnosis. How can we legally protect parent?

Parent can't remember where they are (at times) or how they got there. Incoherent conversation (mixes things up from the past & present or never happened). Threatens to leave and we won't be able to find them. Says ugly things to the family. Returns to familiar locations several times a week to... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 26, 2019

You need a conservatorship. Your problem is that you need the parent to see a doctor to be evaluated before you can get a conservatorship.

Conservatorships take 4 months or so and can be little overwhelming. You need to convince the judge to take away this person's right to run their own...
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2 Answers | Asked in Estate Planning, Real Estate Law and Probate for California on
Q: My mom died without a will. I'm a only child have to go through probate for her house.Does my wife have rights to it.
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 22, 2019

Yes, you need a Probate process (unless your mother used a special deed to pass you the house upon her death).

Dying without a Will is called dying intestate.

If you are the only child, and there is no husband, then you will inherit everything, but you need an order from the court...
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2 Answers | Asked in Contracts, Estate Planning and Probate for California on
Q: Do I have a right to view my parents family trust when one of them dies?

My mother died recently and my father claims she left me nothing. She gave me a signed copy of her California statutory will under the portion Balance of Assets she signed in the box I leave nothing to my spouse all to my decedents. As well as me as the executor. As well as a letter explaining that... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 22, 2019

Under California Probate Code section 16061.5 the trustee has to provide all the heirs and beneficiaries a copy of the Trust. You should demand a copy in writing and if he refuses then it is time to go see a judge.

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1 Answer | Asked in Elder Law for California on
Q: How do I remove a conservator letting the telephone bill be unpaid resulting in it being turned off for 3 mos

2 of the 3 sisters are caretakers who have medical conservatorship but conservator has temporary financial conservatorship. Now the conservator wants to be made permanent.

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 19, 2019

Probate Code 2650 allows the court to remove a non-performing conservator "continued failure to perform the duties"). Any friend of relative can petition the court for this.

Certainly if the conservator wants an "upgrade" to their status, anyone involved can appear at the court hearing...
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