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Questions Answered by Jeffrey Louis Gaffney

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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2 Answers | Asked in Estate Planning for California on

Q: does revocable trust need to be witness in California

and yes i'm aware it needs to be notarized but does it have to be also witnessed, what is the best way to transfer real estate ( house) into trust, via quick claim or is there simpler solution

Jeffrey Louis Gaffney answered on Mar 8, 2019

Witnessing is not enough! A Trust needs to be notarized. Spend the $15.

You have to go to the notary anyway to change the deed.

To put something into your Trust, you need a writing of some sort. For real estate, I would never count on anything less than a Deed, registered with...
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2 Answers | Asked in Estate Planning and Probate for California on

Q: My 28 year old son passed away in California recently. I was contacted by a lawyer hired by my ex husband.

The law office said they are going to settle our sons estate since he had no will. Do I need my own attorney?

I just wanted to add a little more information. I didn't think I would need a lawyer and wasn't even thinking about until the law office contacted me. I thought my son only had a... Read more »

Jeffrey Louis Gaffney answered on Mar 6, 2019

Probably not.

Your son died "intestate" (without a WIll) so the process is very straight forward. The estate will have someone appointed by the court to handle it, things will be inventoried and divided according to the law. If he had no wife or children, then your ex-husband and you will...
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1 Answer | Asked in Family Law, Health Care Law and Elder Law for California on

Q: My sister has Alzheimer’s and has been in a Memory Care facility for six years I have Conservatorship.

Her on going income will no longer cover the cost. Can the facility require us to move her to someplace else after this long.

Jeffrey Louis Gaffney answered on Mar 5, 2019

She should be safe there. The rules for evicting someone from nursing care are pretty strict. As long as she (or her family or conservator) are working with the facility to get her on Medi-Cal, there should be no problem. If the facility does not take Medi-Cal though, then there will be... Read more »

2 Answers | Asked in Estate Planning, Real Estate Law and Elder Law for California on

Q: Can a trustee sell property of the estate to a beneficiary privately at under market value?

My relative has dementia and the Trustee of their estate is selling properties of the estate at below market value and in private to a beneficiary of the trust. They sold a property of the estate without putting it on the market or telling the other beneficiaries. It was sold under market value.... Read more »

Jeffrey Louis Gaffney answered on Mar 1, 2019

This is absolutely not allowed.

A trustee has the duty to treat all beneficiaries fairly and equally, and to protect the assets of the trust. This sounds like the trustee violated both of these tenets.

If the trustee is not doing his duties, you will probably need to ask a judge...
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1 Answer | Asked in Estate Planning for California on

Q: I live in California i stay with my parents and they let my girlfriend stay with us and move in shes been with us almost

5 months now she gave my mom her card wich she would have 200$ on it every month. Can they just kick her out for nothing?

Jeffrey Louis Gaffney answered on Feb 27, 2019

They can evict her for any reason at all, or no reason at all, but they have to go through the entire eviction process. They can't just tell her to get out today because that is her home now.

1 Answer | Asked in Estate Planning for California on

Q: As a beneficiary and co trustee to a trust that became irrevocable upon my fathers death, but his wife is still living.

Can I get a copy of that trust, and can she change the beneficiaries (wants to exclude my spouse and return any monies I have coming to the estate if I die before her)? Can we require an accounting?

Jeffrey Louis Gaffney answered on Feb 24, 2019

As the trustee, and also a beneficiary now that the trust has become irrevocable, you are entitled to a copy of the Trust by California Probate Code 16061.5.

Whether or not she can change beneficiaries depends on what the Trust says. Those things govern themselves and have their own rules....
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1 Answer | Asked in Estate Planning, Real Estate Law and Tax Law for California on

Q: Can I sign a quitclaim deed or interspousal transfer deed to give up my ownership in a rental property to my husband?

Me and my husband (wife and husband) are an old, married couple that own a rental property in California. The property was purchased after we married. I would assume it would fall under community property law. However, the property deed is in the name of my husband. What I want to know is with a... Read more »

Jeffrey Louis Gaffney answered on Feb 21, 2019

Can you? Yes.

Should you? Maybe not. Why all the trouble? You might be hurting yourself on taxes.

You can change ("gift" or "transmute") things from Community to Separate Property at will any time. You are correct that it is currently Community Property. You should make a...
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1 Answer | Asked in Estate Planning and Family Law for California on

Q: I have been with my partner for 11yrs have 2 kids and a house we recently purchased under his name. What is the best

Way to protect myself and kids incase, we split or he were to pass away considering he has another child who pays child support for and we are not married?

Jeffrey Louis Gaffney answered on Feb 18, 2019

You need to have the house put in both of your names as Joint Tenants. Otherwise, you have no interest in the house at all when he dies or if you split up. If you are helping to pay the mortgage, you should be getting some equity for that.

It would also be nice if he had a Will that...
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1 Answer | Asked in Family Law and Estate Planning for California on

Q: My stepdaughter filed for conservatorship on my husband, her father . He’s been diagnosed with dementia since December

2018. What are my rights as his wife? I want to contest this. I am the only one that has been taking care of him not her. Our house is reverse mortgage can she do this? Do I need a lawyer?

Jeffrey Louis Gaffney answered on Feb 14, 2019

You have the right to ask the judge that you be appointed the petitioner instead. You are probably the more natural choice for the job.

You could try this without an attorney, but as with any event in front of the court you are much better served to have your own experienced counsel. Call...
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2 Answers | Asked in Estate Planning and Probate for California on

Q: Son bought a home, wife signed off, they were separated 31 years; he died. Can she claim his estate?

His mom wants to start a probate to sell the home, but she is worried about his (ex) wife making claims against his estate. They were separated for 31 years and he died without divorcing her. He bought the home 2 years ago and died one year ago. How much would the probate cost and can the mom keep... Read more »

Jeffrey Louis Gaffney answered on Feb 12, 2019

Whether the "ex" has any rights depends on whether they were legally separated or not. Being legally separated requires a court order; it is a lot like getting divorced. Until you have that piece of paper, whatever you earn and build is community property.

If the son acquired the...
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1 Answer | Asked in Estate Planning and Elder Law for California on

Q: California Trustee has stopped all gifting to relatives, despite long history of gifting before dementia. What to do?

My aunt and uncle were gifting their allowance to close relatives. Most of the relatives are dependant upon this money to survive and pay bills . My aunt and uncle always expressed that they wanted to care for their family. Uncle has died and recently aunt has early dementia, their estate is in a... Read more »

Jeffrey Louis Gaffney answered on Jan 29, 2019

The answer is in the Trust itself. The Trustee is obligated to follow the instructions of the Trust.

The Trustee may not have any choice about making the gifts. At the death of the Uncle, the Trust may have become irrevocable with instructions about the Aunt if she becomes a Special...
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