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Questions Answered by Jeffrey Louis Gaffney

2 Answers | Asked in Estate Planning for California on

Q: Can anyone advise me where I may be able to find a living trust,I was told it was lost,never had a chance to view it .

To Whom it may concern, thank you in advance for responding to this message,I need to honestly know,if there is any way,I can track down a living trust, my Dad passed away and because at the time, I was in the US military special ops unit,I was unaware of his passing, once the mission was... Read more »

Jeffrey Louis Gaffney answered on May 24, 2019

There is no good answer to this one.

Are you sure he had a Trust? Did he have the house titled in the name of a Trust? Or bank accounts?

It is possible that the bank or brokerage house will have a copy if he held an account there in the name of the Trust.

It is remotely...
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2 Answers | Asked in Banking, Estate Planning and Probate for California on

Q: My mother passed she has multiple bank accounts but only one is joint account with my father.

Obviously under California law my father is entitled to the funds in the joint bank account because his name is also on it. But if there is no will or the other accounts are not listed in the trust is he also entitled to 100% of the funds in the personal savings and checking accounts?

Jeffrey Louis Gaffney answered on May 14, 2019

When someone dies intestate (without a Will), then their property is divided per the statute.

The surviving spouse inherits all community property.

The spouse and children share the separate property of the deceased, with the surviving spouse getting at least one-third no matter how...
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1 Answer | Asked in Elder Law for California on

Q: Can wife qualify for Medicaid if husband's money is all going to residential care facility?

My mother had to put my father in a residential facility due to dementia and not being able to care for him. She is 86 and he is 84. Can she apply for Medicaid? She only gets $700 from Social security and has to pay rent,utilities and prescriptions.

Jeffrey Louis Gaffney answered on May 6, 2019

Yes she certainly can.

Among the things to watch for is protecting her assets from "pay back" to Medi-Cal. If either or both spouses go into nursing home care, Medi-Cal will keep track of how much money they are spending and try to recover that money from the estate after they have both...
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1 Answer | Asked in Estate Planning for California on

Q: Four Morgan Stanley IRA accounts are listed in schedule "A", in a Trust.

Four Morgan Stanley IRA accounts are listed in schedule "A", in a Trust. Those accounts are still at Morgan

Stanley, but I noticed that the account numbers listed today, are different from when the Trust was

established in 2005. Is this a problem? If Morgan Stanley can paper trail... Read more »

Jeffrey Louis Gaffney answered on May 6, 2019

That depends ...

First of all, you almost never want IRAs or 401Ks in a Trust. Those sorts of retirement plans have named beneficiaries so that the money automatically goes to the beneficiary upon the death of the owner. Having the IRAs in a Trust serves no purpose.

You could...
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1 Answer | Asked in Estate Planning and Health Care Law for California on

Q: Will California deny a long term care application if asset money was properly gifted?

I am my 95 year old aunt's attorney in fact. She is in an assisted living home in Culver City, CA. I need to apply for long term care for her. She has some cash in the bank, but not enough to pay her assisted living bill which is in arrears. California goes back 30 months and says they will deny... Read more »

Jeffrey Louis Gaffney answered on Apr 29, 2019

You CANNOT gift the money away or sell anything below fair market value without causing a penalty period for Medi-Cal to cover her nursing care bill. You can spend it but you cannot give it away.

You are not in any way liable for your aunt's care or her bills.

A nursing home can...
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1 Answer | Asked in Estate Planning for California on

Q: What paper do l file to have my Granny's will put inprobate

Jeffrey Louis Gaffney answered on Apr 21, 2019

You need to go your county Probate Court's web site and they will give you very exact instructions.

There are three different levels of Probate process in California. Which level you use depends on what assets your grandmother left behind. If she left no real estate and only moderate...
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1 Answer | Asked in Elder Law for California on

Q: I am being subjected to elder abuse by my live-in caregiver.

I am a competent senior. My caregiver is subjecting me to emotional abuse, but I cannot get rid of her. Any recourse?

Jeffrey Louis Gaffney answered on Apr 14, 2019

If you cannot just fire the caregiver,ort if she won't leave and no one in your family will help you, then you can ask the court for help.

A court can grant a Restraining Order for Elder Abuse. You start by asking for a Temporary Restraining Order at the court house, then, if it is...
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1 Answer | Asked in Estate Planning and Probate for California on

Q: Do i need a reason or show probate judge why i need to withdraw funds frm block acct.,how long does this process take?

I am Administrator of estate.

Jeffrey Louis Gaffney answered on Apr 12, 2019

When you file the petition form to get funds from the blocked account, you have to fill in exactly who will be getting the money and the purpose of the payment.

How long it will take depends on your court and how backed up they are. Expect a few weeks at most.

3 Answers | Asked in Estate Planning and Probate for California on

Q: Do i need to get a court date just to ask probate court to release partial funds from block acct ?

I am Administrator of this estate and I need some money to pay a contractor. I openned court order blocked account where the funds are deposited. While i wait for other issue to be resolved Is it possible to use that money? How do i ask judge?

Jeffrey Louis Gaffney answered on Apr 12, 2019

A blocked account is one blocked by a court order. Therefore, you need a court order to unblock the account when you need to use the funds.

What you need to file is an MC 357 (the Petition) and an MC 358 (the Order for the judge to sign).

You will only see the judge for a minute,...
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1 Answer | Asked in Elder Law for California on

Q: Is it elder abuse if my former landord refuses to refund my security deposit?

When I asked for refund (after waiting 21 daysl) she told me to 'sue me'

I am a 71 year old man with my lower left leg amputated.

Jeffrey Louis Gaffney answered on Apr 9, 2019

It certainly can be elder abuse, but you would have to prove bad faith by the landlord. Is it possible that you don't get your deposit back for legitimate reasons? If the landlord is just a crook, then I am afraid you may just have to sue to get it back.

Try calling the Tenants Rights...
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1 Answer | Asked in Estate Planning and Probate for California on

Q: Can you distribute property in an estate without resolving the debt when there's a will

Jeffrey Louis Gaffney answered on Apr 9, 2019

Yes you can, but it would be a very bad idea anyway you look at it. The executor would be personally liable for any debts or taxes if he gave away too many assets.

Normally it requires the assent of all the parties involved, so any one person can block it.

A final account and...
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1 Answer | Asked in Estate Planning and Probate for California on

Q: My sister just filed our mothers probate paper work to become executor. Shouldn't me and my brother have been informed

And maybe even have to sign something stating that this is what we wanted?

Jeffrey Louis Gaffney answered on Apr 2, 2019

The Probate process begins with someone filing a Petition with the Probate Court, along with the Will if there is one. A court date is assigned 15 to 30 days out. The petitioner is required to give notice of ths to all heirs, beneficiaries, creditors and persons of interest so that they can... Read more »

1 Answer | Asked in Estate Planning, Family Law and Probate for California on

Q: If my friend gives me power of attorney or If I am appointed his payee ..I should be able to have co trole over his mone

Jeffrey Louis Gaffney answered on Apr 1, 2019

If your friend executes a Power of Attorney it will list specific authorities that he gives you over his property. He may have made a very limited one, or a very broad one. If he gave you a broad Power of Attorney then he gave you the authority to handle his taxes, buy and sell real estate, pay... Read more »

1 Answer | Asked in Estate Planning and Real Estate Law for California on

Q: Me and my mom live together in an apartment. My dad never lived with us. He never married mom, he married someone else.

My aunt and my mom found out from hospitals my dad passed away in 1989. He owned many properties under his name before and after marriage to another woman since he never married my mom here in California. That was 30 years ago. Searching those properties today online in his name, it's still active.... Read more »

Jeffrey Louis Gaffney answered on Mar 31, 2019

That depends on whether or not your father had a Will or a Trust.

He is entitled to do whatever he wants to with his property upon his death, within the limits of his not giving away community property that belongs half to his wife.

The trick is how the property is deeded. Is...
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2 Answers | Asked in Estate Planning for California on

Q: Could irrevocable trust from California by dissolved or amended in this example?

Trust A is generation skipping. Trust B is divided amongst children. Standard HEMS. Otherwise beneficiaries cannot take out money, only what trust generates. Each settlor is deceased, one very recently and he hadn’t been of sound mind for years. Trust was made when tax exempt rate was $600,000.... Read more »

Jeffrey Louis Gaffney answered on Mar 31, 2019

Yes, the trust can be dissolved under those conditions.

California Probate Code section 15403 gives permission to do so upon petition to the court (you can't just do it on your own).

You will have to show that all the beneficiaries consent and that the trust is no longer needed to...
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1 Answer | Asked in Estate Planning for California on

Q: After the grantor of a revocable trust resigns and the successor trustee takes over, may the grantor gift trust assets?

The grantor transferred a trust asset's title to a beneficiary–my brother. But per the trust: upon the death of the grantor, the asset, a condo, goes to my brother, but not for free. To equalize, an amount equal to its appraised value is to be withheld from my brother's share of the trust... Read more »

Jeffrey Louis Gaffney answered on Mar 25, 2019

All questions like this of course depend on exactly what the Trust states.

However, normally a grantor retains rights (written this way explicitly in the Trust) to do pretty much as he pleases with every asset. This only applies to a Revocable ("Living") Trust. If the Trust was...
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1 Answer | Asked in Estate Planning for California on

Q: Can a 1st or 3rd party Special Needs Trust be used in CA to shelter proceeds of litigation payable to SSI beneficiary?

Daughter is on SSI, requests mother to be trustee and make new SNT for litigation proceeds resulting from her deceased father's inheritance litigation. Litigation atty claims SNT would be fraud, suggests use of an ABLE acct, but proceeds will be ~$50-60k.

Daughter's live-in lifelong... Read more »

Jeffrey Louis Gaffney answered on Mar 21, 2019

Your question of course just raises more issues.

You can certainly establish a Special Needs Trust for your daughter if she is disabled and on SSI. The whole purpose of

SNTs is to shield assets from someone on SSI or other government programs from being disqualified. They are...
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2 Answers | Asked in Estate Planning, Real Estate Law, Tax Law and Elder Law for California on

Q: How do I best give (or sell for a nominal amount) my house to one of my daughters?

I'm 83 and she is my caretaker and we live together. She has put her life on hold to care for me and I want her to own the house before I die. I have an old living trust that is no longer relevant. I believe the trust splits the property equally between my five children. What type of attorney... Read more »

Jeffrey Louis Gaffney answered on Mar 19, 2019

Do NOT give the house away. It will ruin the tax advantage you have for holding it. If you let your daughter inherit it then she will get to inherit the house with the present value as her tax basis. If you just give it to her she will take YOUR tax basis, which is the amount you paid for it... Read more »

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1 Answer | Asked in Real Estate Law, Estate Planning and Family Law for California on

Q: My grandfather put his wife on the deed to his house. Both passed away and neither had a will.

Both of them have grown children. I was wondering if my grandfather's step children had any claim to the property or the finances made if the property was sold? My grandfather inherited the property from his parents.

Jeffrey Louis Gaffney answered on Mar 13, 2019

It depends ...

Unless he adopted the step children, they have no rights to his property.

When you die without a Will, called dying intestate, the law steps in a divides your property based on what family you left and step children get nothing.

However, if your grandfather...
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2 Answers | Asked in Estate Planning for California on

Q: irrevocable trust in place and mom died last month. What docs need filed relating to cost step up basis?

Both brother and I are trustees and beneficiaries of mom's irrevocable trust. What Federal/State documents need filed so my brother and I inherit property without higher taxes?

Jeffrey Louis Gaffney answered on Mar 11, 2019

Nothing is needed except good records.

What you want to do is find something to show what the value of the property was when she died. A good idea is to have the property appraised (cost a few hundred dollars). That will give you a reasonable and fact based idea from a trained...
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