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Questions Answered by James Edward Berge
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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2 Answers | Asked in Estate Planning for California on
Q: What rights does a lawyer for an attorney-in-fact DPA for finances as agent for the Trust beneficiary/principle have?

A beneficiary's DPA's lawyer is asking questions/contesting about the administration of a Trust for which I am the Successor Trustee. Does the DPA or his lawyer have rights to intervene in the Trust Administration on behalf of the beneficiary?

James Edward Berge
James Edward Berge answered on Feb 20, 2021

If the DPA permits it, then yes, the DPA can make reasonable inquiries of the trustee about the trust administration. Get a copy of the DPA and read it. Look for name of principal, name of agent, effective date (some are only effective upon the incapacity of the principal, and the powers... Read more »

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1 Answer | Asked in Estate Planning and Probate for California on
Q: Petition to Determine Succession to Real Property

In CA, I remember that in order to use this the estate's value must fall below $165,250(?) and that no probate proceeding is pending/has been granted or, if it has, consent must be given by the exec/admi. of the estate.

And since a probate referee is also required for a summary... Read more »

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

Yes. You must prepare a petition, file it, pay the court filing fee, request the appointment of a probate referee, and pay their fee, before you can get the court order that you desire.

1 Answer | Asked in Probate for California on
Q: I hired an attorney to help us with my deceased parents probate in September 2020. Probate still hasn’t been filed.

I haven’t heard from him since 11/20, is this normal? Should we hire another attorney?

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

No, that’s not normal. Yes, you should consider changing attorneys. Give my office a call and we can explore your options.

2 Answers | Asked in Estate Planning, Probate and Real Estate Law for California on
Q: Summary probate needed for real estate in CA?

I've been living in the same house with both my parents for 20+ years and we're all on the title to the house as TIC with each of us having 1/3 interest on the house. About 4 months ago my dad passed, leaving a Will saying that his entire interest in the house (basically his 1/3) goes to... Read more »

James Edward Berge
James Edward Berge answered on Feb 18, 2021

I agree with Nina on her response regarding your loan.

As far as who gets your father's 1/3 share of the house, that will depend on whether he had a last Will or not. If he had a last Will, his 1/3 share will pass to the beneficiaries named under that Will but only after your obtain a...
Read more »

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3 Answers | Asked in Estate Planning, Real Estate Law and Probate for California on
Q: In CA, what what happens to the probate fees if you, the sole beneficiary of the decedent's will, decide to waive them?

For example, In the case of a simplified probate where the decedent only had their share of the house that they shared with two other people (including the adult child) and that share were to be passed down to the adult child via Will. Since the adult child is entitled to receive that remaining... Read more »

James Edward Berge
James Edward Berge answered on Feb 18, 2021

If the executor, administrator or personal representative waives their right to statutory fees, that simply increases the amount passing to the remainder beneficiaries of the estate (less expense, more money for the beneficiaries).

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1 Answer | Asked in Probate for California on
Q: Husband passed with no will. House In his name only. His 40 year old son that he hasn't talked to in 20 years now

Wants 1/2. What are my rights? We live in Ca. We picked and bought the house together. Been together for 11 years and married 5

James Edward Berge
James Edward Berge answered on Feb 17, 2021

In California, under the laws of intestacy, when a married person dies survived by a spouse and 1 child, the spouse takes 1/2 of the separate property and the child takes 1/2. When a married person dies survived by a spouse and 2+ children, the spouse takes 1/3 of the separate property and the... Read more »

2 Answers | Asked in Estate Planning for California on
Q: How does Step-up in basis rule apply for AB Trust if wife sells the house after husband dies?

Husband died in 11/2020. Couple had a Rev Living Trust (AB Trust). I understand all estates will get a Step-up in basis as of spouse's death date.

If wife sells the house in 2021, can she get the Step-Up in basis rule for the entire house?

Someone was saying only the 50% (B... Read more »

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

In a community property state, such as California, the house will receive a step up in its cost basis from acquisition cost to its fair market value when the first spouse dies. When you sell the property, you’ll only pay capital gains tax on the difference between the net sales price received... Read more »

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3 Answers | Asked in Tax Law and Probate for California on
Q: Is the property sale of a deceased child considered an inheritance and if so does it exempt them from some or all taxes?

A family friends son passed away. They are in probate to sell his home and pay off his debts, they are the only heirs. They live in CA as is the home being sold.

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

When son died, the property most likely received a step up in cost basis for income tax reporting purposes to its then fair market value as of son’s date of death, which means there would be no capital gains tax payable on the proceeds of sale up to the property’s new fair market value cost... Read more »

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2 Answers | Asked in Estate Planning, Civil Litigation and Probate for California on
Q: Living trust amendment not signed before death but...Dad gave power to amend to trustee ???

15401. (a) A trust that is revocable by the settlor or any other person may be revoked in whole or in part by any of the following methods:

(1) By compliance with any method of revocation provided in the trust instrument.

(2) By a writing, other than a will, signed by the settlor or... Read more »

James Edward Berge
James Edward Berge answered on Nov 13, 2020

If a trust amendment has not been signed by the trustor or an agent acting on behalf of the trustor under a power of attorney before the death of the trustor, it is ineffective.

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2 Answers | Asked in Contracts, Estate Planning and Probate for California on
Q: My dad died before he signed amended trust, even though confirmed with estate planner, during covid?

My Dad received amended copy of his living trust 3 days before he died and had not signed them. He did contact estate attorney and confirmed draft. I don't believe signing them was exclusive, but I do know that my dad would want his last wishes honored. I know there must be mitigating... Read more »

James Edward Berge
James Edward Berge answered on Nov 13, 2020

If he didn’t sign the amendment, it’s ineffective. It doesn’t need to be notarized, but it does need to be signed by the trustmaker. Sorry to be the bearer of bad news, but to tell you otherwise is just wishful thinking.

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2 Answers | Asked in Estate Planning for California on
Q: How do you find out when a law was enacted? We have a will signed in 1968.

Witness declaration does not include "under penalty of perjury" verbiage. Drafting attorney says it was not required in 1968. Probate examiner says will is not self-proving. All witnesses are deceased.

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

It's true. The words "under penalty of perjury" were not required in 1968, but the probate examiner is also correct (at least they are interpreting the rules these days): to be a self-proving Will, the magic words must appear in the witness attestation clause, or you'll have to... Read more »

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1 Answer | Asked in Estate Planning for California on
Q: My uncle passed away during the summer. He left a Trust which is being handled by a Trust Company.

How long does the Trust Co have to turn assets over to those who are in this trust? Was originally told 3 months but am now hearing it could be longer. No reason given.

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

It really depends. In California, a formal notice must be mailed to all beneficiaries of a trust when a revocable trust becomes irrevocable upon the death of the trustor which gives the recipient up to 120 days to contest the trust. Until that notice period ends, a trustee would be at great risk... Read more »

1 Answer | Asked in Probate for California on
Q: My brother in law asked me to sign his will as a witness and told me specifically to follow instructions in

This estate planning binder. He gave me the spare keys to his home to retrieve it but all the docs were stolen from his estranged son whom he does not trust. He told this to our other family members times. So now the son refuses to let me see the will. I'm afraid he would fraudulently change... Read more »

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

Have you called the attorney's office that prepared the Will? They should have a copy. A copy can be submitted to probate if there's a good reason to believe the original cannot be found and was not revoked. You can also file a petition for probate to have yourself appointed as... Read more »

2 Answers | Asked in Probate for California on
Q: Can a son of a deceased person appoint himself as an executor of a pour over will in state of ca?

We dont know who the executor was since the will and all legal doc were stolen by his son

James Edward Berge
James Edward Berge answered on Oct 28, 2020

The son can accept his nomination as executor under a Will or petition to become the administrator of a decedent’s estate without a Will, but in both cases, a probate court will need to formally bless the appointment after a formal hearing on the matter.

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1 Answer | Asked in Estate Planning and Probate for California on
Q: My husband changed his retirement beneficiary to his daughter.. we are married for 17 years. Who gets the money?
James Edward Berge
James Edward Berge answered on Oct 27, 2020

If the retirement account was an IRA, his daughter gets the money as primary beneficiary even if the account was community property, because spousal consent is not required to setup or change a beneficiary designation on a traditional or Roth IRA account. If the retirement account was a current... Read more »

1 Answer | Asked in Estate Planning, Banking and Elder Law for California on
Q: Can a check made out to the sole trustee of a revocable living trust be cashed without a trust account?

Elderly father received check after home refi. It’s made out to him as: “Name, as trustee of the abc trust”. It cannot be reissued.

Trust is a revocable living trust. Mother and father were the grantors and only 2 trustees. Mother passed away, father is sole trustee now (successor). I... Read more »

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

It’s a common situation, but every bank and credit union and other financial institution has its own rules. My experience as an estate planning specialist with over 25 years in the field is to simply have your dad endorse the check on the reverse side as follows: “For deposit only”, and then... Read more »

2 Answers | Asked in Probate for California on
Q: Regarding Heir-at-Law can a step-son inherit the estate?

When both parents die and there is no will can the step-son inherit the estate?

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

In general, a stepson is not an heir at law. When someone dies without a Will (intestate), the decedent's property generally passes to a surviving spouse, if any, or children who are then living, or their issue by right of representation; but if none, , then to the parents of the decedent or... Read more »

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2 Answers | Asked in Estate Planning and Probate for California on
Q: If asset value changes between DOD and date of distribution, does it affect what beneficiaries receive as a percentage?

A former spouse named several people as beneficiaries, to receive some percentage of the value of an investment account. The executor states that the amount to be received is the value on the date of death, but the account was not terminated. If the assets increased in net value, are the... Read more »

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

No doubt, your answer lies in the interpretation of the language used in making the special gift, but without seeing it, I would opine that the relevant date is date of distribution rather than date of death.

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1 Answer | Asked in Estate Planning and Probate for California on
Q: My sister was a solo practitioner and passed away without a succession plan. What to do with her practice now?

She was practicing family law and she has active pending cases now. Do we need an attorney to notify the court and her clients? Or can we notify the court and clients as her family member?

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

Call the State Bar of California and see what they recommend. If you need to probate your sister’s estate, you can also petition the probate court to appoint a lawyer as a law practice administrator to complete your sister’s cases and perhaps find a buyer for her practice.

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