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Questions Answered by Jeffrey Louis Gaffney
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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1 Answer | Asked in Family Law, Elder Law, Health Care Law and Juvenile Law for California on
Q: I just went to a IEP for 13 old developmentally delayed told to find out on conservitership. Need help & answers.

Do I need to do conservitership, at what time and for what reason since we are her natural parents?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 18, 2019

You do not need a conservatorship until the child turns 18. The conservatorship then will allow you to still continue to make all of their decisions for them as you care for them. The process takes 3 or 4 months so start early. Many places can provide you with help at that time; here in San... Read more »

3 Answers | Asked in Estate Planning and Probate for California on
Q: How can you determine if a trust exists if both the creator and his attorney have passed away?

My father passed away about 10 months ago. He was divorced from my mother. Recently, my mother asked me if we (my husband, our three kids, answer I) had received the trusts that he had set up. My father had never mentioned, to me, that he had set up any trusts. My mom has said that she thought he... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 16, 2019

Most attorneys pass their files on to another attorney when they retire. I would contact the attorney's family and see if they know what happened to the office files.

Look all around the house of course for anything with the word "trust" on it! Or the name of another attorney....
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1 Answer | Asked in Estate Planning for California on
Q: Satisfy wife that some of the estate is set aside to keep it away from a future woman.

For example perhaps some of the assets could be put into an account that could only be used for the care of the husband once all the other assets are spent.

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

If I understand your question, you want to know how to protect your current wife either after your death or hers.

Many second marriages wind up cheating the children of the first marriage. Husband dies, everything goes to new wife who then leaves everything to her own children, forgetting...
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1 Answer | Asked in Elder Law for California on
Q: My mom is running out of money.She wants to stay at home.

Is there a way she or I can take out a loan on her home so she can stay? So we can pay her home health care workers come and have all her food and bills paid?She owns her home and she had given me her other home that I lived in for 15 years.My son has lived with her for 2 years and has been taking... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Aug 20, 2019

There are different options.

Many people use a reverse mortgage to take money out of the value of their house. It is basically a loan with the house as collateral and you never make payments. You keep living there and in the end, the bank gets their money back, plus a bunch of interest,...
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2 Answers | Asked in Contracts, Real Estate Law, Elder Law and Probate for California on
Q: my mom left a will she split up the assets to me and my siblingshowever I wasnt told what my part was. My sis my trust

Sis wants to kick me out of the house i thought was mine given in will

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Aug 2, 2019

First you need to know what exactly the Will and/or the Trust left you.

If you do not have a copy of the Will, then ask the executor (in writing) and if you don't want to wait you can go the Probate court and get a copy (assuming that the Probate process was started).

If there was a...
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2 Answers | Asked in Estate Planning for California on
Q: For a Will in the state of California do I have the option of 2 Witnesses or 1 Notary Public?

I prefer 2 Witnesses and a Notary but we are having a problem getting the 2 Witnesses.

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

Here in California we do not notarize the signature. The rule is two witnesses or the entire will in the testator's hand writing.

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2 Answers | Asked in Estate Planning for California on
Q: California Our mother died and we don't know what claim we have to the house we lived in.

My grandmother had my mother and our family live in her paid off home since I was little. After Grandma died years ago, we continued to live there. My parents never married but my father pays/paid the property taxes every year. My mother suddenly died earlier this month and now an Uncle is trying... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jul 18, 2019

It all depends on what grandmother's Will and your mother's Will said.

I suspect that neither had a Will. The answer, though it depends on the deed too, is probably that the house passed to your mother and her siblings (the uncle?) in equal shares and now uncle wants his share. That...
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1 Answer | Asked in Real Estate Law and Elder Law for California on
Q: We live in an over 55 community with no HOA. What can we do about one person that's 34 yrs old here? Nuisance

The real estate company knew this! We have been inundated with loud music and pool parties!

And he's a bully to the residents because we're older!Please help!

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

Sadly, the rules that keep people 55 and under are not laws, but just an enforceable agreement among the owners.

Somewhere you have a Homeowners Association (HOA) that has a set of rules and covenants (CCRs).

Did they BUY or RENT? If renting then the HOA can enforce penalties...
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2 Answers | Asked in Estate Planning for California on
Q: Inheritance Time Frame

My husband has a terminal illness in which he is expected to live 2-3 weeks, I called his only sister to inform the family (his sister and father)about his prognosis, only to be informed that my father in law had passed away in late April. My father in law and my sis in law are located in New... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jun 30, 2019

The answer depends on whether there was a Will or a Trust or not. If there were such documents, then they would control completely what happens to the assets of your late father-in-law.

Many Wills and Trusts require that the heir survive the deceased by a certain amount of time but it...
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1 Answer | Asked in Elder Law for California on
Q: I live in CA and my mother lives in a skilled nursing home in MS. POA is needed to stop sister from taking her funds.

My only sister lives in MS and she is taking money from her while she is in the facility permanently. When my mother admitted herself into the facility she emptied my mother home of everything. And has opened accounts in my mother name.

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jun 15, 2019

Elder Abuse is a crime in every state of the Union. If it were here at home we could get a restraining order to keep your sister from taking the money. I am sure you can do the same thing in MS.

Do you mean that YOU want a POA over your mother? Your mother will have to possess the...
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3 Answers | Asked in Estate Planning for California on
Q: I live in California. I am disabled. If Both parents pass without a will., Will I inherit their homes automatically?
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jun 12, 2019

That depends on whether or not you have siblings. It has nothing to do with whether or not you are disabled.

If one spouse dies intestate (without a Will) then all of the community property passes to the surviving spouse. If that surviving spouse then dies intestate, the estate is...
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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
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
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
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
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
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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