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Questions Answered by James Edward Berge
2 Answers | Asked in Probate for California on
Q: Can a mortgage lender sell a home before probate is finished ?

My father recently died with no will and no transfer on death deed on his home. Could the mortgage lender sell his mortgaged home before probate is finished ? If they can or do, will the estate receive the sale amount minus outstanding balance ?

James Edward Berge
James Edward Berge answered on Sep 16, 2020

Yes. If there’s a deed of trust recorded against property, no permission is required before a property can be sold by the trustee, assuming normal notification protocols are followed. If there’s a profit, the estate will get the profit.

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1 Answer | Asked in Probate for California on
Q: I live in CA. Who is responsible for apt lease if my husband died and his mom signed the lease with him?

I’ve been separated for 7 yrs but was still married to him. I’m not on the apartment lease Nor lived there. My late husband’s mother signed the lease so that he could get the apartment. She did not live at the apartment.

Who will be held liable for paying the apartment lease, the... Read more »

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

Since both signed the lease agreement, both are jointly and severally liable for all lease obligations, including payment of monthly rent. If mom cannot pay, a probate estate for the decedent can be opened by the creditor by a petition for probate in order to have a legal representative appointed... Read more »

2 Answers | Asked in Estate Planning and Probate for California on
Q: My ex husband has allowed me to use his pickup for the past year. His son says he will tell police I stole it.

The son inherited all assets in a trust. I am 72 and guardian of my great granddaughter since her mother and grandmother both died. I have told the son he can come and get the truck. He says that I must return it or he'll tell the police I stole it. I told him he could come and pick it up,... Read more »

James Edward Berge
James Edward Berge answered on Sep 9, 2020

No, you've not stolen the vehicle. You were permitted to use it while the vehicle owner was alive. Now that the vehicle owner has died, his heirs are entitled to ownership and possession of the vehicle. There's nothing that you're doing to prevent these heirs from picking up the... Read more »

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2 Answers | Asked in Estate Planning for California on
Q: Does a lease/rental agreement transfer with a mobile home with a living trust when the home goes to a family member?

I am the trustee on my mother in law's living trust. When she passes, her mobile home will be transferred to my sister in law who lives with her and serves as her care giver. She presently has as lifetime rental/lease agreement with the mobile home park. Does the lease agreement transfer with... Read more »

James Edward Berge
James Edward Berge answered on Sep 8, 2020

No. A lease is merely a tenant’s right to possession of property during the lease term. You said that your mother in law was the tenant and the lease term was the life of your mother in law. Once she passes, the lease comes to an end by its terms. The mobile home on the other hand was owned... Read more »

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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.
James Edward Berge
James Edward Berge answered on Sep 5, 2020

Yes, but don’t add to it or get creative. Follow the instructions on the form carefully. You can fill in the blanks and check boxes, but that’s all you can do.

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2 Answers | Asked in Probate for California on
Q: Can you file a Heggstad Petition without being in probate or filing Petition for Probate with court?
James Edward Berge
James Edward Berge answered on Sep 2, 2020

Yes. A Heggstad petition is a request filed by the trustee of a trust with the probate court to confirm the validity of a trust, the name of the trustee, and the existence of trust assets. It’s often used to avoid a full probate of the estate which can cost thousands of dollars and take 12-18... Read more »

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1 Answer | Asked in Estate Planning, Real Estate Law and Tax Law for California on
Q: Prop 13 question regarding selling my Father's house I inherited.

When my dad passes, and I inherit his house, I have been informed that under Prop 58 I can keep the Prop 13 benefit that my dad has. However, if I were to sell the house, can I therefore transfer that Prop 13 benefit to another residence in a reciprocal county? If so, do I need to be a resident... Read more »

James Edward Berge
James Edward Berge answered on Sep 2, 2020

You're referring to California Prop 60 and Prop 90. Here's a link to the California Board of Equalization website which explains the requirements of the law: https://www.boe.ca.gov/proptaxes/prop60-90_55over.htm

1 Answer | Asked in Consumer Law, Contracts and Estate Planning for California on
Q: I would like to end a conservator relationship that my aunt has as we, her family can pay her bills for her.

My aunt is an older widow who is being overcharged for payment of 2 bills.

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

Now that your aunt has been legally conserved, it's really not up to you to decide whether your aunt should be conserved or not, it's now up to the court, the court investigator, and your aunt's attorney to decide that matter. Your opinion certainly matters, but the court will... Read more »

3 Answers | Asked in Probate for California on
Q: In CA, husband’s will listed alternate heirs if the spouse does not survive him. She did. Must I list these alternates

in my petition to probate even though they do not inherit anything because spouse is still surviving?

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

Yes. Everyone named in a Will must be given notice of your petition for probate (whether they get anything or not).

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1 Answer | Asked in Estate Planning, Real Estate Law, Tax Law and Public Benefits for California on
Q: Can the state/government take a house that was left to me by parents if I've collected welfare?

My parents are planning to make a will but unsure if state/government will be able to seize it after its in my name because ive collected welfare (cash, food stamps, medical)

James Edward Berge
James Edward Berge answered on Aug 18, 2020

No. If you receive Medi-Cal, SSI, TANF, SSDI, VA or IHSS benefits, a house in which you reside is considered a non-countable resource in your benefits determination. If you receive Section 8 housing however, a house will jeopardize those benefits. Food stamps are based on income, not assets,... Read more »

2 Answers | Asked in Estate Planning for California on
Q: My sister is brainwashing my mother to take my name off the trust mother was just diagnosed with Dementia How do I Pr
James Edward Berge
James Edward Berge answered on Aug 17, 2020

The only way to prevent this wrong from occurring is to conserve your mother with notice to her and the entire family and a court hearing. The process is both time consuming and expensive and may not make you any friends, but if your mother needs help to prevent the undue influence of other... Read more »

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1 Answer | Asked in Estate Planning and Probate for California on
Q: In San Jose CA, how can I stop my brother from scattering my father's ashes immediately after the cremation?

My father just passed away today. My oldest brother is planning to immediately cremate and then scatter his ashes. He is also the custodian of my father while he was in elderly care facilities. We all agreed on the cremation. However, my other younger brothers and I want to have the ashes stay in... Read more »

James Edward Berge
James Edward Berge answered on Aug 16, 2020

File your petition in the probate court. Call the court before filing your petition and ask about having your matter heard ex parte.

1 Answer | Asked in Estate Planning for California on
Q: Is bond req”d for out of state executrix as sole beneficiary of her fathers estate which include real property in CA?
James Edward Berge
James Edward Berge answered on Aug 14, 2020

No bond is required in that situation.

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)

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

Generally, no. The trust agreement does not need to be filed (recorded) with the county recorder's office, but any deed which is intended to convey legal ownership of real property to the trust needs to be recorded. It's generally not good enough to simply list the property in a... Read more »

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1 Answer | Asked in Probate for California on
Q: I paid ongoing expenses for estate while waiting for my Letters in 6 months of shutdown. Do I need to submit a DE-172?

I am personal representative with full IAEA and estate is solvent.

James Edward Berge
James Edward Berge answered on Aug 11, 2020

No, but you do need court approval to pay yourself anything out of the estate. Keep your receipts and submit your request for reimbursement at the time of your petition for final distribution and if there’s benefit to the estate, your request for reimbursement should be approved.

2 Answers | Asked in Banking and Probate for California on
Q: I am sole heir and administrator. I am in chexsystems and cannot open bank account. What will happen when house sells?

I am the petitioner in pro per. I do not have an attorney representing me. Could I amend my order and add a co-administrator?

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

You will need formal Letters from the court which authorize you to act as Administrator for the estate of the decedent. Some banks even require letters which have been certified by the court. You will also need a new federal employer identification number for the estate If you don’t already... Read more »

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2 Answers | Asked in Estate Planning for California on
Q: Can successor co-trustees name successor trustees if this power isn't specifically given in the trust?

Settlors created the trust in 1988 naming themselves trustees and then their two adult children, a son and a daughter. The primary trust asset is property in California. The two "children" are now in their 80's. The daughter lives out of state and has never participated in the... Read more »

James Edward Berge
James Edward Berge answered on Aug 4, 2020

If the trust agreement doesn’t give a trustee the authority to appoint a successor trustee, a trustee or a beneficiary needs to petition the probate court to appoint the new trustee.

If not, perhaps the trustee has the authority to delegate trustee powers to an agent under the trust...
Read more »

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3 Answers | Asked in Estate Planning for California on
Q: Gma died my father passed away before her and my dad was only son and I am only child. Can I get my dads portion?

I have 4 aunts which got a large portion and I got 10,000 out of hundreds of thousands

James Edward Berge
James Edward Berge answered on Jul 30, 2020

I agree with the previous replies. I would also add that, because your father died, his entire estate would pass under his Will, if he had one, or intestate, if he didn't, in which case his estate would pass to his heirs at law (i.e., his children). But to prove that he died and he had... Read more »

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2 Answers | Asked in Estate Planning for California on
Q: Do estate lawyers need marriage licenses or birth certificates to setup a living trust?

My parents are setting up a living trust and they stated that the estate lawyer is requesting my marriage license and my children's birth certificates "establish family lineage". I feel that it is my parents just trying to see if my wife and I are actually married and if my name is... Read more »

James Edward Berge
James Edward Berge answered on Jul 17, 2020

No, there’s absolutely no reason why an estate planning lawyer needs that kind of information from you.

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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.

James Edward Berge
James Edward Berge answered on Jul 15, 2020

No, if the property was held as joint tenants with rights of survivorship. In that case, the property belongs to the surviving owner. A Will only has dispositive effect on individually owned assets that have no beneficiary designation.

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