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Questions Answered by James Edward Berge
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.

2 Answers | Asked in Estate Planning for California on
Q: How long does a conservator have to transfer the estate to the executor in California after the conservatee has died?

I am the executor of my fathers estate listed in his will. He died 4 months ago under a conservatorship, and I have not been informed anything in regards to his estate. I live in Massachusetts which is why I was not his conservator, he received a court appointed one. I was contacted about... Read more »

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

I agree with Yelena that you need to open a probate of your father’s estate to collect any money or property passing to his estate upon his death and to establish yourself as the legal representative of his probate estate. But before the probate estate gets anything, the conservator will first... Read more »

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1 Answer | Asked in Probate for California on
Q: Probate attorney failed to complete Representation Agreement and dropped case. In California

We retained probate attorney had a Representation Agreement, during the process my brother starts making demands for me to pay to have the property line’s changed and to sign over my fathers house, the lawyer contacts me and tells me that if I fail to comply with my brothers demand then he can no... Read more »

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

Contact your local county bar association to see if they offer a mediation process to settle fee disputes. Or contact your state bar association to see if they have a process for handling complaints against your attorney. Or contact another probate attorney to see if there's anything that... Read more »

1 Answer | Asked in Estate Planning for California on
Q: My uncle changed my grandma’s will without her consent after she suffered from a stoke which caused brain damage.

How can I take action to be able to get my inheritance that she told me I would receive when she was coherent?

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

If your grandma is still alive, you would need to become your grandma’s conservator to assess whether your uncle has taken undue advantage of her and to perhaps revoke her Will if you discover she was mentally incompetent at the time she signed it. You can also wait until after she dies to... Read more »

1 Answer | Asked in Probate for California on
Q: My mother past away when me and my brother were teenagers . Our home was taken over by her boyfriend, what can we do?

They were never legally married and she never had a will, I have documents that state he took over her home, being next of kin do we have rights to the home?

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

If your mom owned a home at the time of her death, and she died without a Will, that property would pass to you as her children by the laws of intestacy. If she owned a home at the time of her death and died with a Will, that property would pass to you as beneficiaries of her estate under her Will... Read more »

2 Answers | Asked in Probate for California on
Q: Im a beneficiary of a trust, and never received a copy. How do I find out who the trustee is, and how to contact.

Here's what I was told:

-All my grandmother's assets are to be split between me and my brother.

- funds are not to be available until we reach 25 or start college. (Not sure if it means I get mine at 25, or we both get it when he-the younger sibling. Turns 25)

-Her... Read more »

James Edward Berge
James Edward Berge answered on Oct 3, 2020

Trust agreements are not legally required to be filed with any state or local official, so they remain entirely private throughout their existence. The law does require a trustee to notify you of the existence of the trust, your entitlement to a copy of the trust, and a warning that any trust... Read more »

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2 Answers | Asked in Estate Planning and Collections for California on
Q: Adding my name to our home title by doing a QuitClaim Deed documentation and filing it to the County

If I have creditors after me - will they now go after our home? (California property)

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

Yes, if you have any property, your creditors may have a claim against it. Tread carefully before adding your name to any asset when you have creditor claims against you. Consult with an estate planning attorney.

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3 Answers | Asked in Child Support and Estate Planning for California on
Q: Can you pay for child support from a trust where the child is the beneficiary?

My wife and I are recently divorced. Years prior to our divorce, we set up trusts for each our daughters. I am the trustee and my daughters are the beneficiaries of each of their trusts. The trusts own shares in a private company that may have a substantial liquidity event in the near future.... Read more »

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

If agree with Shawna. It depends on why you set the trust up the way you did (trustor’s intent) and the language of the trust. If the purpose of the trust was to provide for the child’s education and there are no prohibitions in the trust on using trust funds for such purpose, then yes, you... Read more »

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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 »

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