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Questions Answered by James Edward Berge
2 Answers | Asked in Probate for California on
Q: In the state of California as an heir how do I claim deceased person's property? (Cash, stocks, accounts)
James Edward Berge
James Edward Berge answered on Oct 4, 2021

If the sum total value of all assets held individually by the decedent at time of death (excluding beneficiary designation accounts where there is a designated beneficiary, such as life insurance, annuities, and retirement accounts) is under $166,250, you can claim these assets from the bank by a... Read more »

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2 Answers | Asked in Probate for California on
Q: Do I need a probation ?

My husband just passed away. Our house is held as community property with right of survivorship. I am the sole beneficiary of his retirement accounts and bank accounts. His will left 10% to my daughter. Do I need a probate ? Can I settle the 10% of the estate to my daughter without the probation?... Read more »

James Edward Berge
James Edward Berge answered on Oct 3, 2021

Community property with right of survivorship passes automatically to the surviving spouse without probate but you’ll need to record an affidavit of death with the county recorder’s office to perfect your sole ownership of the property. Any joint ownership of bank accounts held with your... Read more »

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3 Answers | Asked in Estate Planning and Real Estate Law for California on
Q: Property is in trust. Trustees as individuals then quitclaim it to their daughter. Who owns

Trust transfer deed "jack and jill transfer to jack and jill as trustees of jack and jill trust" quitclaim deed "jack and jill transfer to daughter

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

The trust still owns the property. The deed from them, as individuals, rather than trustees, did not convey good title to their daughter, because they, as individuals, did not own the property.

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1 Answer | Asked in Elder Law and Family Law for California on
Q: My dad was put in a nursing home my brother sold his property without my fathers consent what do i do ?
James Edward Berge
James Edward Berge answered on Sep 21, 2021

There's nothing you can do assuming your brother had the legal authority to sell your father's house. In other words, if he had a durable power of attorney from your father which authorized him to sell the house or he was acting as the trustee of your father's trust which owned the... Read more »

3 Answers | Asked in Estate Planning for California on
Q: I created a trust and put my assets in it (mutual funds) when I went to prison.

I'm out. And I would like to close or end or dissolve the trust, basically my buddy does not want to manage the trust now that I am out. What steps do I need to take. The trust was formed in CA.

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

If you want to terminate (revoke) the trust, just sign a simple letter to the trustee which says you hereby revoke the trust and to return all trust property to your management and control. If you want to keep the trust and simply change the trustee of the trust (from your buddy to you), again, a... Read more »

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1 Answer | Asked in Probate for California on
Q: My mother's will was type written and signed along with two witnesses signed in October of 1989. Is this self-proving?

She also had an Official California Notorial Certificate Acknowledgement to prove her to be the signer of the will in front of a notary public on June 6, 2007

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

Self-proving means the attestation clause (which recites that the witnesses were in the presence of the testator and saw the testator sign the Will and saw each other sign as witnesses and the testator appeared to be competent) must be signed by both witnesses under penalty of perjury. It does no... Read more »

1 Answer | Asked in Family Law, Child Custody and Probate for California on
Q: If a Court investigator issues a recommendation predicated on provable lies can that recommendation still be considered

Unbeknownst to my wife and I, my son's step grandmother secretly petitioned for guardianship claiming she was his biological maternal Grandmother. The Court investigator issued a recommendation based soley on the lies she told him. My wife and I found out and showed up and objected also... Read more »

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

If, as you suggest, the court investigator’s report contains provable lies and the recommendations contained therein are based on those lies, you should contact the court investigator immediately to show them what evidence you have. If it makes a difference in their official recommendation, they... Read more »

1 Answer | Asked in Probate for California on
Q: Can my partner sign over durable POA to me, while they’re incarcerated?
James Edward Berge
James Edward Berge answered on Aug 21, 2021

Yes, without a doubt, but the logistics may be difficult. You can call the prison administration to find out how to arrange it. If it’s impossible for you to get an original document to an inmate for signature, perhaps an attorney will have a better chance. The prison will have a notary... Read more »

1 Answer | Asked in Elder Law for California on
Q: Is there a limit to how much a long-term care service can increase its rate each year?

My senior family member is receiving 24 hour care services and recently received a 22% increase in the cost of his care.

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

No, there are no statutory limits. You should however review your contract with your healthcare provider and see if there are any notice requirements and/or any other limitations before a rate increase takes effect.

3 Answers | Asked in Estate Planning and Probate for California on
Q: Lawyers hired by Probate Executor...

In will, the deceased named a non-family friend executor of will. The executor hired a law firm for probate.

Does the law firm have fiduciary responsibility to the Executor or to estate (beneficiaries of) ?

Does the family have recourse if they feel process (actions taken by the... Read more »

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

Attorneys for the executor are not fiduciaries. Attorneys for the executor get paid from the estate but only after court approval of their fees. Any beneficiary of the estate can file their objections to the reasonableness of the fee request. Statutory fees are reasonable by law.

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1 Answer | Asked in Probate for California on
Q: Asset document for closing Petition

My Probate lawyer asked me to provide most recent statement from Vanguard to show the probate court what is the net worth of my father's Vanguard Estate Account. Asset appraisal has been done by the Referee. 2. I would like to know if California Probate law requires the administrator to... Read more »

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

Yes, as the administrator for a decedent's estate, you are required by law and local court procedure to give the court full copies of all current bank statements for the decedent's estate in support of your statutory accounting and your petition for final distribution. If you want to... Read more »

1 Answer | Asked in Probate for California on
Q: Husband dies intestate leaving Spouse, no children, and sister. Is sister an heir? What is her % of personal property?

Intestate succession in California

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

This is a state law specific question. In California, if husband dies without a Will survived by a wife and no children, all of his property goes to his wife (whether community property or separate property), and his siblings get nothing.

2 Answers | Asked in Elder Law for California on
Q: Can I evict my 90 year old mother from my home; I reside in CA?

My relationship with my mother has always been difficult, but I brought her into my home and was willing to allow her to live with my husband and I until the end of her life. This was a mistake. She has always been a mean-spirited, narcissistic personality, but she now behaves in ways that are far... Read more »

James Edward Berge
James Edward Berge answered on Aug 3, 2021

Contact a real estate eviction attorney. He will advise you on the proper notice to be given to her. If you fail to follow the proper notice procedure and she fails to leave, you might have to wait even longer to get her to move out, and if you tell her to leave and she fails to leave and you... Read more »

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1 Answer | Asked in Probate for California on
Q: Am I required to go through probate?

My father passed away without a will. My mother is still alive and was married to him for 53 years at time of death. They own one house together. My father loved cars and has a few in his name and my mother's name. They also had one joint checking account with less than $1000 in it.. There is... Read more »

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

Since your parents were married at the time of your father’s death and they owned their home together, no probate should be required, either because they owned it together as joint tenants with the right of survivorship or as community property.

2 Answers | Asked in Estate Planning and Probate for California on
Q: What all needs to be filed to remove a trustee in CA
James Edward Berge
James Edward Berge answered on Jun 10, 2021

I'm assuming you mean an involuntary removal of a trustee. For that, you'll need to file a petition with the probate court in the county where the trustee conducts its business and prove to the court's satisfaction of the need for the removal by clear and convincing evidence of... Read more »

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1 Answer | Asked in Probate for California on
Q: How backed up is probate court to appoint somebody administrator?
James Edward Berge
James Edward Berge answered on Jun 8, 2021

It all depends on the court. The probate courts in San Francisco and Santa Clara County are not scheduling hearing dates for up to 3 months out from the filing of a petition for probate due to COVID.

2 Answers | Asked in Probate for California on
Q: Who has the responsibility to file probate for a person that died without a will or trust & what if this was not done?

The husband of 8 months took over because he lived in HER house & he was able to ascertain what he could take after gaining access to her accounts. He was able to take everything (including her ashes) & he took most of it illegally. He was not named on any of her assets. He only paid her a... Read more »

James Edward Berge
James Edward Berge answered on Jun 3, 2021

No one has the responsibility to file a court petition to probate a decedent's estate. If there are no assets subject to probate, there's no need to file for probate or to be appointed as the personal representative for a decedent's estate. Anyone who is an heir to property... Read more »

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2 Answers | Asked in Real Estate Law and Probate for California on
Q: How do I sell my interest in property in Kern County I own with my sisters? They won't talk to me so I can't ask them

The property was purchased in the early 80's. My parents out us kids on the deed(?) so we all owned it. My mom died in 1989. My dad died in 2003. My step sister says the land us her moms and my dad wanted me to sign a quit claim. I know that's a lie.

My father and his wife took... Read more »

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

Jonathan meant to say “petition for partition of the property.” A partition is a judicial proceeding where you can request and a judge will order a forced sale of the property so that you can get your money out of the property. It’s available to you regardless of your limited interest in... Read more »

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3 Answers | Asked in Estate Planning for California on
Q: Is it better to choose an estate lawyer who is located in or near the county where parent died?

...because they know how things work in that county, they know county staff if document issues arise, and their travel fees will be lower?

James Edward Berge
James Edward Berge answered on May 9, 2021

I disagree with my colleagues. For probate matters, the fee is statutory and therefore fixed by law. So, regardless of who you choose to represent you, the cost will be the same. For estate planning matters, experience is more important than a local presence, especially in the internet and COVID... Read more »

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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.

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