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Questions Answered by Jeffrey Louis Gaffney
3 Answers | Asked in Estate Planning and Family Law 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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3 Answers | Asked in Estate Planning and Probate for California on
Q: Once someone dies who starts the process of the will?

My single Dad passed away in June leaving 3 offspring in our 50's. My brother moved in with Dad several years ago due to no home

For last 3 years Dad needed care provided primarily by brother. Sister/me assisted 2 days/wk. After Dad died, bro claims Dad left all to him, discontinued... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 23, 2020

The custodian of the Will is required by law to "lodge" it with the Probate Court and start the process. The court appoints an Admiistrator and then supervises the distribution of the assets. It is kind of a long, annoying process which is why we use Trusts to avoid it.

If the...
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1 Answer | Asked in Estate Planning for California on
Q: Uniform Testamentary Additions to Trust Act (UTATA) -

Justia states the UTATA requires the trust also reference the pour-over will. What statement added to the trust would meet this requirement?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 21, 2020

I believe you are mistaken.

The UTATA allows a Pour Over Will but does not mandate any reference in the Trust. You can read the whole thing at...
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2 Answers | Asked in Estate Planning and Real Estate Law for California on
Q: Paying off my parent's mortgage and putting the title under my name

My parents, who are in their 80's still paying mortgage on house. What is involved for me to pay off the mortgage and putting the title under my name so my parents do not have to worry about this anymore?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 12, 2020

NO!!!!!!!!

If you move the house into your name while they are alive then you will give up a HUGE tax advantage. Right now if the house is sold, your parents have a big tax liability for all the profit they make on the sale (probably). If they GIVE the property to you then you carry the...
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1 Answer | Asked in Estate Planning for California on
Q: New Baby Not Listed in the Family Trust - Will She Still Inherit?

My boyfriend is a co-trustee and beneficiary of a family trust. The entire family consists of my boyfriend, his mother and brother (the three co-trustees). They do not have any other family members, extended or otherwise. However, last year my boyfriend and I had a daughter together, but she is not... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 6, 2020

You have to look at the Trust to see how it is written. When I write one I make it so you never have to worry about this problem and don't have to update your Trust every time anyone has a baby. I bet this Trust is written that way too, BUT a Trust can be written any way the client wants so... Read more »

3 Answers | Asked in Estate Planning for California on
Q: If I get a Statutory Will Form and fill it out correctly and have two witnesses, is it a legal document? I am in CA.
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 6, 2020

Yes. The Statutory Will is designed to be foolproof, but if you have any special circumstances or want to get tricky then get some help. A professional will make sure you avoid Probate, plan for long term nursing care and avoid serious tax mistakes.

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1 Answer | Asked in Estate Planning and Tax Law for California on
Q: If my dad passes, and house is in trust to me, can i resume the prop 13 property taxes?

My father owns his house outright, and wants to put the house in my name now. First, is this a good idea? The house is in a trust to me in case he passes. Second, if and when I become the owner of the house, can I resume the prop 13 taxes? If I can resume those prop 13 taxes, if I were to sell... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 2, 2020

Terrible idea!

If you inherit the house instead of having it gifted, you save a ton of money on taxes. If you inherit then your tax basis is stepped up to the current value; if dad gifts it then you also get his tax basis. That means a huge difference in the taxable gain when you sell....
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1 Answer | Asked in Real Estate Law, Estate Planning and Probate for California on
Q: How to get name on deseased dads deed for house he owned outright

Theres 3 sibling s im the oldest

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 2, 2020

To get a deed changed you need an order from the Probate Court, unless the property was in a Trust.

The Probate Court will look at the Will and hold hearings to make sure there are no problems, and then give an order for authority to distribute the assets. If there was no Will then you do...
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2 Answers | Asked in Estate Planning for California on
Q: Does a Revocable Living Trust need to be filed with the County Recorder's office in California

The Trust does contain real property (a home)

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Aug 14, 2020

No. You can do it but the county clerk does that so infrequently that you will just get a funny look from them. Also, this would make the document public, which most people don't want.

Keep the original safe, and I usually tell my clients to give the successor trustees a copy.

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1 Answer | Asked in Estate Planning for California on
Q: My dad passed away. He has a trust. He has 4 daughters. 3 are named with their children. I am not. Fight it? or not?

Document says I am specifically not named. What information do I need to provide to fight this and get named in will?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Aug 11, 2020

If you are specifically named as getting nothing, then all you can do is challenge the mental capacity of your father to make that decision. If he was in his full senses, then he has the right to exclude you if he wants to.

2 Answers | Asked in Estate Planning and Probate for California on
Q: If I reside in California but my family all live in Pennsylvania, in what state should I make out a Will?

I am a 50 year old woman living in California. I never married, have no kids and minimal assets (I own my car and have about $1000 in the bank). Both of my parents and my siblings all live in Pennsylvania. I'm starting the process of "getting my affairs in order" and think the first... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jul 27, 2020

California. You live here and that is where the Will would be Probated.

Your estate sounds like it would use Simplified Probate (less than $160,000 and no real estate) so the Will won't go thorugh "real" Probate anyway.

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4 Answers | Asked in Estate Planning, Insurance Bad Faith and Probate for California on
Q: Is a son or daughter of a beneficiary of a life insurance policy entitled to the proceeds if the the benefiary dies?

And son or daughter is not listed as a beneficiary on the policy?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jul 26, 2020

The money goes to the estate of the deceased beneficiary. Then it is distributed based on their Will or the law (if they died without one).

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1 Answer | Asked in Estate Planning for California on
Q: I have a question about the retirement account of a deceased spouse.

In 2001 I married xxx, and she took my name. She died of leukemia in 2005. She had no will, but also no significant property so whatever she had just came to me. From time to time over the years I’ve received mail addressed to xxx from the IBEW (she had been an electrician at one time before I... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jul 24, 2020

First of all, tell Fidelity that she passed away. If it was a retirmenet account then there is a beneficiary named by her and Fidelity will want to send that person the money; no fuss, no muss. If that person is NOT YOU then you might want to get angry if the money was earned during your... Read more »

1 Answer | Asked in Estate Planning and Probate for California on
Q: What is the process for appointing someone as a substitute in the case of property shares in a living trust?

My grandmother left her home to her five children in a living trust, and my mother and uncle are requesting to leave their shares to me. The property cannot be sold unless all five children agree to sell it, and currently my mother and uncle are living at the property with myself. They would like... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jul 22, 2020

Is the property still held by the Trust? If it is, then only the Trust can say how it may be passed.

If the Trust closed down then the Trustee should have deeded the house to the five siblings; then if they want to pass you their 20% interest they can do so with a deed.

4 Answers | Asked in Estate Planning for California on
Q: Adding beneficiary

Hello,

If i am adding a beneficiary to my trust and wish to assure them I will not remove them as beneficiary ever, is there a legal agreement that can be signed stating they and I must mutually agree before they can be removed?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jul 16, 2020

So you want to protect them from you ever changing your mind?

They only way I can think of doing that would be to have a new irrevocable trust (I am assuming your current one is a Living/Revocable Trust). As long as you are alive you can always change your Living Trust.

You could...
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3 Answers | Asked in Estate Planning for California on
Q: if a will says to split the assets but the asset is in another sibling name, does she have to honer the will?

the asset is a home that is now in my sisters name.

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jul 16, 2020

I am afraid that if her name is on the asset, then it belongs to her and the Will had no control over it (unless the deceased's name is on the asset too, in which case it gets harder and depends on exactly how the names are on the paperwork).

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4 Answers | Asked in Estate Planning for California on
Q: My brother lives with my elderly mother. She would like a letter stating he has to vacate the house in a certain time.

This would be after her passing.

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jul 14, 2020

A letter won't do it because after her death, someone else will own the property and the letter won't have any power.

I am guessing that she wants him to be able to live there for X years, then the property will go to her heirs. That is done best in a Living Trust; it can also...
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