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Questions Answered by James Edward Berge
1 Answer | Asked in Probate for California on
Q: Is it possible to get a second opinion on a probate case. I feel my lawyer doesn't have my best interest at heart

Is it a common practice when you're lawyer files documents with the Court to have 16 documents sent back to you because they have been filed wrong??

James Edward Berge
James Edward Berge answered on Apr 28, 2021

No, I would hope not. Give me a call if you have any questions. Probate is my specialty.

2 Answers | Asked in Probate for California on
Q: Can my father go through my personal belongings in search for things he thinks he should have inherited?

I have lived in my grandparents home since my grandmother passed 30 yrs ago. I've lived here and raised a family here for 30 years. My uncle owned the house but didn't live there with us he lived in the house 3 doors down. He allowed my family and I to live there rent free. When he passed... Read more »

James Edward Berge
James Edward Berge answered on Apr 23, 2021

If you own the property, it’s yours to keep. If it was owned by your grandfather at the time of his death, it now belongs to your dad. It’s up to you and your father to prove ownership of the property by clear and convincing evidence. If you can prove that you bought the property or that it... Read more »

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2 Answers | Asked in Estate Planning for California on
Q: What is the time limit for an estate administrator to send a deceased person's Will to the adult children in CA?

No special circumstances that might cause a delay.

James Edward Berge
James Edward Berge answered on Apr 21, 2021

If the estate administrator has not yet filed a petition for probate, there's no requirement to send a copy of the Will to anyone, including the children. If anyone is in possession of an original Will, there is however a requirement to lodge (file) that original Will with the probate court... Read more »

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1 Answer | Asked in Probate for California on
Q: My uncle died in 2019, I provided notice a week after he died. He left property to me in his trust.

Now my other uncle has served me with a lawsuit a month ago to invalidate the trust. The property was left to me in the trust and I’ve already transferred into my name. What would prevent me from just selling the property or giving it to someone ?

James Edward Berge
James Edward Berge answered on Apr 19, 2021

Obviously, as the legal owner of the property, you can sell it or give it away, but if your uncle can prove by clear and convincing evidence that you weren't entitled to the property, then you can be held accountable for the sale proceeds or the fair market value of the gift, so sell or gift... Read more »

1 Answer | Asked in Probate for California on
Q: My uncle left me property in his rust, I transferred that property into my name. Now relatives are taking me to probate

To invalidate the trust and take the property. Can they do this ? It’s been 2 years and the property is in my name

James Edward Berge
James Edward Berge answered on Apr 19, 2021

More than likely, yes. Did you provide the contestants with notice of the trust as required by California Probate Code section 16061.7 when your uncle died? If not, there’s nothing to prevent the lawsuit from continuing until it’s resolved. There are many reasons why a trust may be invalid,... Read more »

2 Answers | Asked in Probate for California on
Q: Probate for unclaimed property?

My mother died years ago. All she had was a bank account that I took control of. No house of her own or valuables. She had no other children but me. Late last year, I received a letter in the mail from a company called OCWEN that she has unclaimed property in the value of $1273. I contact them... Read more »

James Edward Berge
James Edward Berge answered on Apr 14, 2021

You don’t need a probate for a small estate (under $166,250). Use a small estate affidavit and send the company a copy of the statute which authorizes the collection procedure (California Probate Code section 13100). Good luck!

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2 Answers | Asked in Estate Planning, Real Estate Law, Civil Rights and Probate for California on
Q: Do children have any rights to their deceased dad's stuff if his mother never informed them of his death?

2 days ago my brother told me that our dad died last March. I live in Missouri and my brother was in prison at the time.The coroner told me that our dad's mom made arrangements for everything. My father told me that there were things he was wanted me to have (pictures and a car). I'm the... Read more »

James Edward Berge
James Edward Berge answered on Apr 12, 2021

In California, the decedent’s children are the intestate heirs of the decedent and not the decedent’s parents. If dad died testate (with a Will), the beneficiaries under that Will are entitled to his property. Demand to know why your dad’s mom thinks she’s entitled to the property. If... Read more »

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2 Answers | Asked in Estate Planning and Tax Law for California on
Q: What can be done if "B" trust assets were donated benefiting "A" trust executor and second wife?

Father-in-law is Bill. His 1st wife is Mary. They had a trust that owned 20 rental homes. Beneficiaries were 3 kids. About a year after Mary died, Bill remarried. Ten yrs later, Bill and second wife Joyce created a trust. At that time, 10 rentals were put in a "B" trust (Mary's... Read more »

James Edward Berge
James Edward Berge answered on Apr 12, 2021

Yes, but it will take a voluntary settlement agreement by and among the trustee and all beneficiaries of both trusts, with or without court approval.

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5 Answers | Asked in Estate Planning, Real Estate Law and Probate for California on
Q: Should my partner and I purchase our home as a joint tenancy or TIC? We are unmarried; He has kids from prior marriage.

We both want to be able to remain in the home, make improvements, or sell if the other passes away. He wants to ensure his children to receive his share of the proceeds if the house is sold after his death. We may get married and have more children in the future. What is the best ownership... Read more »

James Edward Berge
James Edward Berge answered on Apr 12, 2021

I agree with the other responses, but would add that it's important for the two of them to have an agreement which governs their rights and obligations with respect to their shared ownership of property. Like a partnership agreement, it would have a stated term (length of years) and would... Read more »

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2 Answers | Asked in Estate Planning and Probate for California on
Q: I am 50/50 owner of a house My brother lives in now am i able to move in at anytime since i am 50 owner to in California

just found out i was part owner, brother kept trust from me.

James Edward Berge
James Edward Berge answered on Apr 8, 2021

If you hold title to the property as tenants in common (both of your names are on the deed), then both of you have the equal right to the use and possession of the property absent an agreement between the two of you to the contrary. But if this is trust owned property and your brother is trustee... Read more »

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1 Answer | Asked in Probate for California on
Q: Confused about the meaning of who is a "party of this cause"

I want to file a Request For Special Notice (Form DE-154) for a probate case in Los Angeles, California. I'm confused about statement #1 in the Proof Of Service By Mail part. It says "1. I am over the age of 18 and not a party to this cause. I am a resident of or employed in the county... Read more »

James Edward Berge
James Edward Berge answered on Mar 28, 2021

No, your husband is not a party to the cause if he’s not a beneficiary or an heir to the estate, or otherwise has an interest in the outcome of the case. Marriage by itself does not make him a party to the cause. However, that being said, you would be advised to find an independent person in... Read more »

1 Answer | Asked in Probate for California on
Q: original will with petition to determine succession to real property (no probate proceeding pending/has started)?

Hi. I've read that you would need to provide a copy of the will to go along with the petition. I'm assuming the copy would have to be certified, yes?

Also, if not filed with the court already (but should have been done within some time frame that I just found out about, so... Read more »

James Edward Berge
James Edward Berge answered on Mar 25, 2021

All original Wills get lodged (filed) with the Court separately from the Petition. Only original Wills, not certified Wills or copies of Wills. Once lodged, your Petition can reference the date of the filing with the Court.

There is no penalty for the late filing of the Will. However, if...
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1 Answer | Asked in Estate Planning and Probate for California on
Q: Claim Homeowner exemption on deceased parent's home

My father passed away in October, 2020. He is a resident in Santa Barbara County. I have a probate case filed with probate branch in Santa Barbara County. I received a Homeowner Exemption termination Notice from county assessor's office. I live in Texas. I would like to know which option... Read more »

James Edward Berge
James Edward Berge answered on Mar 22, 2021

Since your father passed away before 2/15/2021, you should qualify for the parent to child reassessment exemption under California Prop 13/58 regardless of whether this is your principal residence, a second home, rental home, or commercial property. The homeowner exemption merely reduces your... Read more »

3 Answers | Asked in Estate Planning and Probate for California on
Q: Is there anything that has to be filed when one person in a joint trust dies? If so can I find out through county record
James Edward Berge
James Edward Berge answered on Mar 14, 2021

If the trust is the owner of real estate, you might find an affidavit of death of trustee filed in the local recorder’s office for the county where the land is situated. You might also find an original Will of the deceased trustor located in the court clerk’s office for the county in which the... Read more »

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2 Answers | Asked in Elder Law for California on
Q: Mom with Alzheimer in assisted living. I'm trustee of the trust. Sister needs to be appointed Guardian of medical.

In california, can my sister be appointed just guardian of living/medical conditions? Mom definitely cannot be at her home.

James Edward Berge
James Edward Berge answered on Mar 13, 2021

Definitely, except it’s called a conservator of the person. You can manage the finances and she can handle the healthcare, personal care and long-term care.

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3 Answers | Asked in Estate Planning and Probate for California on
Q: If I am named a beneficiary in a trust does the trustee have to provide me with a copy of the trust?

My dad died a couple years ago and I just found out he had a trust set up before he died that names me a beneficiary but my stepmom won't give me a copy or tell me anything about it. She has already sold off a lot of his things and I just discovered she sold their home and moved across the... Read more »

James Edward Berge
James Edward Berge answered on Mar 12, 2021

Yes, you’re entitled to a copy of the trust agreement. Google search California Probate Code section 16061.7 to see what you’re entitled to. Make sure the trustee is aware of this code section. Failure to abide by this rule could result in suspension of her powers, and her removal as... Read more »

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4 Answers | Asked in Estate Planning for California on
Q: I have a Trust and Living Will with an Amendment. I want to revert to the original. Can I simply tear up the Amendment?

The Amendment was done about 7 years after the original Trust by a different lawyer. It was a change to my beneficiaries. Now I want to reverse that. Do I need to see a lawyer or can I simply tear up the Amendment so that the original stands as is?

James Edward Berge
James Edward Berge answered on Mar 7, 2021

You can destroy it, but the better practice is to revoke it in writing by another amendment and to reaffirm the original trust agreement to avoid arguments that the amendment was not revoked it was merely lost.

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2 Answers | Asked in Estate Planning and Probate for California on
Q: What if a non-probate asset is listed in a Will?

If you were appointed by the court to handle the estate or, if you were to file a petition to determine success to real property, and discover that an asset listed in the Will turned out to be a non-probate asset, wouldn't you leave that out of the Inventory and Appraisal forms since they only... Read more »

James Edward Berge
James Edward Berge answered on Mar 6, 2021

Yes, if you were appointed to be the executor of an estate, you would omit any assets from the estate inventory that pass by some other means, such as by right of survivorship or by beneficiary designation or by spousal property petition. You’re not eligible to file a petition to determine... Read more »

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3 Answers | Asked in Estate Planning for California on
Q: Is my grandmother the sole mortgagee of the house now?

My grandfather passed away. He and my grandma were the two mortgagors (borrowers) to the home my grandma lives in now. The house is in CA a community property state, however the house is not paid off. What do we have to do to ensure she keeps the house.

James Edward Berge
James Edward Berge answered on Mar 2, 2021

Nothing. If she was the borrower, she’s still the borrower. If the house was the collateral, the house is still the collateral. There’s not even the need to inform the lender of the borrower’s death. Just keep the loan paid current and everything will be just fine.

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3 Answers | Asked in Estate Planning for California on
Q: How can I activate a Living Trust as Successor Trustee while the Settlor is still living, but has dementia?

I need advice and assistance in how to declare the Settlor incapacitated which the Trust allows for. Relatives are trying to remove him from his home, acting only in his name, and I need to have legal authority to provide for the Settlor's care and welfare under the Trust before they act.... Read more »

James Edward Berge
James Edward Berge answered on Feb 25, 2021

You need to read the trust agreement. Look for the definition of incapacity. Upon the incapacity of the settlor-trustee, if you are named as the next trustee, prove the settlor is incapacitated using the definition of incapacity. Frequently incapacity must be proven by a sworn affidavit of at... Read more »

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