Lawyers, Answer Questions  & Get Points Log In
Questions Answered by Jeffrey Louis Gaffney
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...
Read more »

View More Answers

3 Answers | Asked in Estate Planning for California on
Q: How can my mother can remove her husband as executor for her individual trust and designate me instead?

My mother has had her husband (my stepfather) as the executor to her individual trust for 30 years, but due to his dementia he is unable to handle the responsibility after her death. When I use the word executor I'm referring to the person who will manage my mom's trust and assets after... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jun 18, 2020

If it is her trust, then she probably has the authority to fire the trustee. You have to read the trust.

View More Answers

3 Answers | Asked in Estate Planning and Probate for California on
Q: My father passed away. No family member has shared the will to me. And they have filed paperwork. What can I do?

3 older sisters involved . I’m the youngest. And then there is the younger ,greedy widow.

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jun 8, 2020

Go look up the documents.

Go to the Probate Court for the county where he lived and look him up. If there is a Will then it was filed there and you can see it. If not, then you will find out if the family has started other proceedings. If there is no Will, then you are entitled to a...
Read more »

View More Answers

2 Answers | Asked in Estate Planning and Tax Law for California on
Q: does the trust have to get a s.s. number and pay taxes every year?
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on May 23, 2020

You can make any trust into a Grantor Trust, where the original grantor (settlor; the guy with the money) just keeps paying the taxes himself on his 1040. Trusts have a very high tax rate so most people do it that way.

When the grantor dies (even of a Living Trust) then you have to get the...
Read more »

View More Answers

2 Answers | Asked in Estate Planning for California on
Q: Elderly parents have 6 year old will and trust. Will a holographic codicil be o.k. in California to make changes?

The lawyer put himself as executor before heirs. Now they want to make an heir their executor. Also in their trust the lawyer is listed as a trustee. Do they need 3 separate codicils? One each for their wills and another for the trust? They don't want to spend money to do it all again.

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

Yes, the need to make formal changes to these documents, except to change a Trust you make an Amendment. So, they want two Codicils and a Trust Amendment.

If you are doing it yourself, be VERY careful to make sure you write exactly what you want with no ambiguity.

View More Answers

2 Answers | Asked in Estate Planning for California on
Q: Can you transfer your trust from California to another state jurisdiction without a court order
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on May 8, 2020

Unless a Court created the Trust then you are free to do what you want with it.

But there is no reason to "transfer" a trust. Except for self-settled irrevocable trusts, they are all pretty much the same and the states will recognize the other.

I am not even sure how you...
Read more »

View More Answers

2 Answers | Asked in Estate Planning and Probate for California on
Q: My son passed away last August. I paperwork with his company for insurance is complete. What are the next steps in CA?

I have not filed any paperwork with the state. There is NO property other than books, furniture, personal items etc. and his insurance.

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on May 5, 2020

If there is no Will and no Trust and nothing but some personal property, then you really have nothing to do except take his personal items and distribute them. You and his mother will have equal rights to the belonging. If there are bank accounts then you need to use the money to pay his bills,... Read more »

View More Answers

2 Answers | Asked in Family Law and Elder Law for California on
Q: Could I gain legal guardianship over my mother who has alzheimer's even though she's still married to my father?

My mother has alzheimer's and wanders out of her yard into the neighborhood but my father is in denial about her condition and puts her in dangerous situations. He refuses any help from the family. Is there a way where my brother or I could get legal guardianship over my mother?

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

Conservatorship is a big step. It takes months, you need a doctor's opinion, and if your mother objects to it then you will not get it granted without a fight (a trial). If your father opposes it, then you have a different fight but still a family mess.

View More Answers

3 Answers | Asked in Estate Planning for California on
Q: Can a legal assistant provide assistance with simple living trusts or will? Is it necessary to hire an attorney?
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Apr 21, 2020

For an unlicensed person to give you legal advice is against the law. There are services and on line sites that give you a way to draft your own documents but they don't give advice. You can even buy a book.

A Will is pretty simple until you start trying to account for asset...
Read more »

View More Answers

4 Answers | Asked in Estate Planning for California on
Q: How can I insure that the property my husband and I aquired with my inheritance will go back to my family.

We have a 5 unit property that we purchase cash with my inheritance that I received from my mother in Austria. We have no children. We have a living trust, it is named in the trust, but we want it to go back to my family once my husband and I are gone. The way the trust reads is, that everything... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Apr 9, 2020

I wouldn't record it outside of the Trust because you would lose all the advantages the Trust provides (like avoiding Probate).

Just amend the Trust to read what you want instead of the "50-50" split you have now.

View More Answers

3 Answers | Asked in Estate Planning for California on
Q: My uncle recently passed away and my sister & i live in his house and are both hiers to the estate.

Can the power of attorney evict us?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Mar 30, 2020

No, the Power of Attorney was only valid while your uncle was alive.

The person with control over the property now is the Trustee (if it is in a Trust), or the Executor appointed by the Probate Court.

View More Answers

2 Answers | Asked in Divorce, Estate Planning and Probate for California on
Q: My mother in law died and left my husband and I over $200k. She didn’t put my name on the account.

Before passing, she showed me how to access the account and that she was glad it would help us. My husband didn’t know about the account value until I told him about it after she died. His grief pushed him over the edge, he got a girlfriend and left me after obtaining this account. Divorce has... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Mar 20, 2020

If she never put your name on the account and never left it to you in a Will or Trust, then it belongs to him and him alone. Any inheritance like that is Separate Property and not Community Property, so you do not have any rights to it.

Sorry.

But if you are hiring a divorce...
Read more »

View More Answers

1 Answer | Asked in Family Law and Elder Law for California on
Q: Seeking conservatorship of dad, who's unable to communicate. He suffered a major stroke in March 2018. Veteran of USMC.

Had been in a Skilled Nursing Facility since the injury. But currently in Kindred Hospital Ontario. Waitng to be transferred back to Inland Valley Care in Pomona. Hopong to get him transferred to Lancaster, to be closer to home. He's receiving Military pension, VA Disability and Social... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Mar 18, 2020

Conservatorships come in two types: the person and the estate.

Conservatorship of the person allows you to make medical and personal decisions. Conservatorship of the estate allows you to handle his finances. Both take a few months to get (add an extra couple months due to the Corona...
Read more »

1 Answer | Asked in Communications Law and Elder Law for California on
Q: Had a good friend of over 20 years suddenly passed before we could discuss everything that needed to be done legally.

Was the contact and his emergency contact for him when in hospital. He was hospitalized since September 2019 & found out he had lung cancer as well as other GI problems. Went home on his birthday January 31st. He was getting stronger but I got sick and was unable to see him. Then I got busy... Read more »

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

No.

I am sorry but last wishes must be in writing, ether handwritten and signed or typed and witnessed.

Any assets that he left behind belong to his creditors and his family (even if they cannot be found). Eventually some asset search company will find this abandoned money and look...
Read more »

1 Answer | Asked in Estate Planning and Elder Law for California on
Q: Is there anyone that can help me with a conservatorship with little or no money for retainer?

My husband is suffering from cognitive decline and has lost almost everything. His employees and ex business partner have stolen so much from us.

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Mar 10, 2020

It depends on what you need. The Legal Aid Society and other agencies have free conservatorship clinics (I volunteer at the San Diego one); Google around. They normally only will do conservatorship of the Person, which gives you the right to run that person's life and medical decisions.... Read more »

4 Answers | Asked in Civil Litigation and Estate Planning for California on
Q: common law marriage and inheritance

My father passed away and left no will. He and my mother were divorced, and he lived with another woman for 18 years unmarried. There are a few small things I would like to have as keepsakes, and his vehicle was in his name alone. As his blood relative am I entitled to these few things? or is... Read more »

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

There is no common law marriage in California. She has no rights to his property.

View More Answers

3 Answers | Asked in Estate Planning and Probate for California on
Q: My mom died Wednesday, she left a handwritten/sealed will. We have a grant deed naming us both as 'joint tenants'

there is a mortgage on the townhouse but i am not sure what to do next; please advise. Do i need a Probate lawyer? Mom's doesn't have any other assets but has credit card debt.

Thank you

Jennifer

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

You can do Probate yourself for small estates. Just buy a How To book (I like the NOLO book).

The house is yours now if the deed had you as a joint tenant. You need to file an Affidavit of Death of joint tenant with the County Clerlk, along with a copy of the death certificate, to get the...
Read more »

View More Answers

2 Answers | Asked in Estate Planning and Probate for California on
Q: My brother had his lawyer draw up papers stating anyone who took property from my moms estate will be cut inheritance

Are these papers enforceable since it's not his property &there hasn't been a probate court hearing yet? Can this stop him fr being the administrator?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Feb 28, 2020

This should not be enforceable at all. unless it is in the Will or the Trust. The very fact that he and his lawyer would say something so outrageous might be enough to keep him from being the Administrator if you can convince the judge that he does not have good intentions.

View More Answers

2 Answers | Asked in Estate Planning and Probate for California on
Q: in California is it true that all assets get split equally between the beneficiaries without a will?

a parent recently passed away unexpectedly and they never got around to updating their pension, retirement accounts or will. The Will that we had was “dismissed” so that all of the children get equal shares however nothing was said about his pension which (because it was created so long ago)... Read more »

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

I think you are saying that the parent only named one child as beneficiary of his retirement account. If that is so, then that is a binding decision on the part of the parent.

View More Answers

1 Answer | Asked in Elder Law, Probate and Estate Planning for California on
Q: My Lola's (grandma's) youngest son claims to have POA, will not allow my Lola and me to be together, Please reunite us.

POA is not Conservatorship, they are abusing POA. My Lola is my Valentine every single day, to keep us apart is cruel. When she asks for me and they don't allow me to see her, that is cruel and elder abuse. I used to be my Lola's 24/7 live-in care provider since her kids and grandkids are... Read more »

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

If you think she is being abused then you need to report this to Adult Protective Services in your County.

If you want to fix the problem of her being isolated from you, then you can ask for a Restraining Order for Elder Abuse. Isolating the elder from loved ones is considered abuse under...
Read more »

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.