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Questions Answered by James Edward Berge
4 Answers | Asked in Probate for California on
Q: Can I just do a notorized letter instead of a will in leaving my house to my child and the deed is in my name?
James Edward Berge
James Edward Berge answered on Mar 30, 2020

I agree with Gerald. If you don't want to use a formal Will (which requires the signatures of at least two disinterested witnesses) or a revocable living Trust, consider using a holographic Will (which doesn't require the signatures of any witnesses but does require that the entire Will be in your... Read more »

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1 Answer | Asked in Probate for California on
Q: Can an executor of a will in Calif. be allowed to withhold the will from the deceased person's children for 1 year?

..A Father dies in Calif. and leaves a will . He names his current wife (who is also the stepmother of his two children) the executor. She claims that the will doesn't have to go thru probate because he didn't have anything. Is there anyway that she can legally withhold the will from his... Read more »

James Edward Berge
James Edward Berge answered on Mar 26, 2020

California law requires anyone who holds the original Will of a deceased person to file the Will with the court clerk of the County where the decedent resided. A copy must also be mailed to the Executor named in the Will, or to a beneficiary if the Executor’s whereabouts are unknown. The relevant... Read more »

2 Answers | Asked in Estate Planning and Tax Law for California on
Q: I file a fiduciary tax return for my deceased parents trust every year. The income is less than $75K.

Will I receive a stimulus check?

James Edward Berge
James Edward Berge answered on Mar 26, 2020

That’s not my understanding. Only individuals with limited income will be entitled to a stimulus check, not trusts.

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2 Answers | Asked in Estate Planning for California on
Q: It's been over 11 years since our attorney started probate, but he won't finish. What remedy do I have? Trapped in CA.

It appears that he has completed almost all the steps, but won't complete the petition for distribution.

James Edward Berge
James Edward Berge answered on Mar 14, 2020

You can always terminate his services and hire another attorney to complete the probate, or you can try to do it yourself with the help of a paralegal or do-it-yourself book. I suspect there are complications of which you are unaware which prevent final closure. It should not take 11 years to... Read more »

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1 Answer | Asked in Probate for California on
Q: special administration how to?

my grandfather passed.my mother filed a petition to administor unde IAE, the will was submitted which, i am his granddaughter and named executor of his estate and he gives everything. How do i file a special administrater forms

James Edward Berge
James Edward Berge answered on Mar 12, 2020

Simply file your own Petition for Probate and ask to become the Executor under your grandfather’s Will. Same forms that your mother filed. Buy a book from Nolo Press on how to file a probate in California. That should teach you everything you need to know. Good luck! If that sounds too... Read more »

Q: Can I deposit my Daughters $19K Jackpot winnings into her Special Needs Trust so that SSI doesn’t stop her monthly pmnt

She is on SSI and is Bi Polar. There is a Special Needs Trust set up for her. She won this playing Bingo and the Casino took all the taxes out and gave her $5,000 cash and the rest in a check because that is what she asked them to do. I found out about it and have all of it now and wondering what I... Read more »

James Edward Berge
James Edward Berge answered on Mar 10, 2020

I agree with Nina. If the first party trust, also known as a self-settled trust, has a Medi-Cal payback provision in it, you can deposit the receipt into it and it’s no longer considered an available resource under SSI and Medi-Cal rules and regulations. However the income must be reported to... Read more »

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2 Answers | Asked in Estate Planning for California on
Q: I was left a home in trust. Can I put the home in my name although there is still a 2nd with about 20k left?

I've been paying the mortgage/bills as "the estate of" for 2 years along with the home insurance that's sky high because it's a trust.

James Edward Berge
James Edward Berge answered on Mar 6, 2020

Yes. You can transfer title to the property from a trust to your name as beneficiary without triggering a due-on-sale clause in the loan agreement under the Garn St. Germaine Act. The lien carries over to the new owner however, so keep paying the mortgage.

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1 Answer | Asked in Elder Law for California on
Q: My brother in law is taking financial advantage of my elderly mother in law. How can I protect her financial security?

She lives in a memory care senior community. My brother in law has power of attorney and I believe conservatorship. I am very close to her. I support and take care of her in many ways since my husband passed away. I recently learned that my brother in las has been taking out a substantial amount... Read more »

James Edward Berge
James Edward Berge answered on Mar 6, 2020

Without being the conservator of her person and estate, there’s not much you can do except be supportive of her. The conservator has control of her money and is accountable to the court for the use of her money. If he is using her money inappropriately, the court will demand that he pay the... Read more »

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

James Edward Berge
James Edward Berge answered on Mar 6, 2020

I'm sorry to hear about the loss of your mother. Since the property was held in joint tenancy, it passes by right of survivorship to you as the surviving owner. All you need to do to establish your sole ownership of the property is to file and record an Affidavit of Death of Joint Tenant to... Read more »

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1 Answer | Asked in Probate for California on
Q: I am contesting a conservatorship and my requested motion to dismiss was never filed if i lose can i get a new hearing?

I am contesting a conservatorship and i had a motion to dismiss drawn up but my court appointed never filed it. If i lose can i appeal and get a new hearing because it was never filed when i asked for it to be filed?

James Edward Berge
James Edward Berge answered on Mar 5, 2020

Just let it be known to the court at the time of your hearing on the petition for conservatorship that you wish to contest the conservatorship. The court should either grant you a continuance to either file your paperwork or hire an attorney to represent you. Don't expect a continuance of more... Read more »

1 Answer | Asked in Probate for California on
Q: I agreed to be conserved can I tell my attorney to call it off before she goes to court?

I was mislead into agreeing to be conserved tomorrow morning , can I tell my attorney to call it off when she goes to court tomorrow? But, if I am conserved , she told me that it will be a temporary conservatorship for one year , is that possible?

James Edward Berge
James Edward Berge answered on Mar 5, 2020

Yes. You have the right to withdraw your voluntary petition at any time before the entry of a final order. Good luck in court tomorrow.

2 Answers | Asked in Real Estate Law, Family Law and Probate for California on
Q: My understanding of "Quasi-Community" is that it is property out-of-state. Am I incorrect in this understanding?

I am trying to further understand the California Probate Code and the term "Quasi-Community" has taken me longer to understand than expected. May someone please explain this term in other words? I would greatly appreciate any assistance. Thank you for your time!

James Edward Berge
James Edward Berge answered on Feb 29, 2020

As a follow-up to Mike’s answer, check out this weblink for an example of community property, quasi community property, and separate property: http://azemikalaw.com/post-102-what-is-quasi-community-property.

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2 Answers | Asked in Probate for California on
Q: My mother died without a will her estates in probate &no one is supposed to remove any property but my sibling did.

Should my other siblings and I call the police,press charges or file a report?The same sibling petioning to be administrator although he isn't yet still had his lawyer draw up papers stating anyone who takes property from the estate will be ineligible for inheritance.could this effect his chances... Read more »

James Edward Berge
James Edward Berge answered on Feb 27, 2020

That's the problem when someone dies. The legal owner of the personal property has died, and until a personal representative is appointed by the court to represent the decedent's interests, there is no owner. If you're not an owner, you can't call the police to report the theft of property.... Read more »

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4 Answers | Asked in Probate for California on
Q: My mother-in-law recently passed away aren’t gifts she received during life her personal property?

Now the kids are asking for what they gave her back my husband is successor trustee I told him the items belong to her and that if nothing is identified to go back to any specific person, that they will have to follow what the trust says in order to disburse it

James Edward Berge
James Edward Berge answered on Feb 26, 2020

You are correct. Personal belongings are personal property and belong to the decedent. If she had no Will, they would pass to her natural heirs. If she had a Will, they would pass to those named under the Will. If they were owned by the trust at the time of her death, they would pass under the... Read more »

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2 Answers | Asked in Estate Planning and Real Estate Law for California on
Q: Was my brother's inherited property reassessment done in error based on a possible misinterpretation of CA law/rules?

My brother inherited a home from our late parents (both passed away in 2018). The home was originally in my parents' revocable trust. We hired a trust company to handle the transfer. The company filed the appropriate grant deed documents and the transfer went from my parents' trust, to my brother,... Read more »

James Edward Berge
James Edward Berge answered on Feb 25, 2020

Your brother must be a current income and/or principal beneficiary of the trust to avoid reassessment under Prop. 13, and all other current income and/or principal beneficiaries must also qualify for an exemption for the transfer to the trust to be considered an exempt transfer. The county... Read more »

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2 Answers | Asked in Estate Planning and Elder Law for California on
Q: Per California law, does my sister have to complete an advance directive at the same time she signs a power of attorney?

My sister is in a skilled nursing facility for rehabilitation due to a stroke she had in July 2019. I've been trying to work with the nursing home to have her sign a power of attorney. The administrator of the facility is telling me she has to do both a power of attorney and an advance directive... Read more »

James Edward Berge
James Edward Berge answered on Feb 24, 2020

An ombudsman is only needed for an advance health care directive, not a statutory power of attorney, if your sister is in a nursing home, and both can be executed at different times.

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1 Answer | Asked in Elder Law for California on
Q: My sister claims she has POA, that she won't show me, for my mom. I believe she is mismanaging funds. How can i get POA?

I live in PA, my mother lives in CA with my sister.

James Edward Berge
James Edward Berge answered on Feb 19, 2020

If it's true, your sister doesn't have to show you her power of attorney. If she uses it, she's only accountable to the principal, her mother. She's not required to use it. It's probably good that she has one, because it can help avoid the need for a probate conservatorship if your mom should... Read more »

2 Answers | Asked in Estate Planning and Probate for California on
Q: How long can a bank hold my dead husband's saving account if there is no probate
James Edward Berge
James Edward Berge answered on Feb 13, 2020

I would add to John's answer that failure by anyone to claim the account through small estate affidavit or probate procedure could result in the money escheating to the State if not claimed within a particular period of time.

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2 Answers | Asked in Probate for California on
Q: Is it a law in California that the executor of a trust must account for a beneficiaries portion to said beneficiary?

if my aunt is executor of my mom's will, does she have to account for my portion of the trust, or money when i ask for it? is it the law?

James Edward Berge
James Edward Berge answered on Feb 10, 2020

Absent a written waiver of theIr right to a formal account, all beneficiaries entitled to either income and/or principal of an estate are entitled to a formal account prior to distribution.

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2 Answers | Asked in Probate for California on
Q: Do the object/consent signatures on the Notice of Proposed Action forms need to be notarized?

I have been granted full authority to administer my mother’s estate without court supervision under the California Independent Administration of Estates Act. I need to sell a small plot of land prior to final distribution of the estate. Do the object/consent signatures on the Notice of Proposed... Read more »

James Edward Berge
James Edward Berge answered on Feb 10, 2020

No. There’s no requirement to notarize signatures on the NOPA forms.

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