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Questions Answered by James Edward Berge

2 Answers | Asked in Elder Law for California on

Q: I have been left my grandfathers home in his will. I asked the city if I can file the document to be on record in person

They told me when there in person I did not need to. I am now reading that’s not true and I needed to file it within 30 days. One of his children of my aunt has filed for probate to be executor of estate, She knows I have his last will and testament but is ignoring it. The home is in process to... Read more »

James Edward Berge answered on Sep 9, 2019

It's still not too late to file the original Will with the Santa Clara County Superior Court at 191 N. First Street, in San Jose.

The statute says 30 days but there is no penalty for failure to file within that time. You said that someone from the city informed you. Perhaps you went into...
Read more »

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3 Answers | Asked in Probate and Estate Planning for California on

Q: My friend’s father passed away & her half brothers want to use the living trust made in 2017 & not the revised from 6/19

The older trust benefits the brothers and pretty much leaves the daughter out of an inheritance. Can they choose which will to use?

James Edward Berge answered on Sep 8, 2019

It depends on which trust owns the asset. The older trust may own the house and bank accounts. The newer trust may own nothing. If neither trust owns the asset, the most recent Will controls who owns the asset. If the only Will points to the older trust, the older trust gets the asset. If... Read more »

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1 Answer | Asked in Estate Planning and Probate for California on

Q: My mom wrote a notarized letter leaving me her belongings, can her boyfriend fight that in court?

They aren’t married, but have lived together for around 6 years.

We also lived in a different state. I moved to Nevada 3 years ago, she lives in California.

James Edward Berge answered on Sep 6, 2019

If there’s no dispute that your mom owned the property she sought to leave to you, it’s hers to give away. A letter however is not a Will unless it’s intended to have testamentary effect and is either written entirely by your mom in her own handwriting or signed by two witnesses. If the... Read more »

2 Answers | Asked in Estate Planning and Probate for California on

Q: Reversing or modifying a Trust Transfer Deed and Change of Ownership report by seller/transferor.

The deed to my father's primary residence has been transferred by means of a Trust Transfer Deed, into the name of my half-sister, as trustee. He has reason to believe she has been mismanaging his funds, refusing to disclose any information pertaining to his affairs and assets, so he wishes to have... Read more »

James Edward Berge answered on Sep 5, 2019

Your dad doesn't need to revoke the trust to remove a trustee. All he needs is a simple letter to the trustee exercising his right to remove a trustee and demanding that she deed the property back to him as sole trustee. If she fails to do so, she can be held liable for damages. A simple... Read more »

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1 Answer | Asked in Estate Planning for California on

Q: If cars my dad owned before marriage and have always solely been in his name considered personal prop? No will

I am only child and parents were married 30+ yrs, however, 3 classic cars & 1 classic motorcycle were all purchased and owned by my father before my mom and dad were married....he didn’t have a will. I realize my mom receives all community property and separate property should be dispersed... Read more »

James Edward Berge answered on Sep 5, 2019

It sounds like the cars your father purchased before marriage were his separate property. If a person dies without a Will and is married and has one child, the laws of intestacy say that your mother inherits 1/2 of that property and you inherit 1/2 of that property. If your mother claimed 100%... Read more »

1 Answer | Asked in Business Law and Probate for California on

Q: Is there a law against appointing anew board member to replace a deceased one in my CCorp whileher stock is in probate?

According to my bylaws I am allowed to replace her vacancy. But I am wondering if there is a law against that in California given the fact that her shares of stock are currently going to be transferred in ownership in Probate.

James Edward Berge answered on Aug 26, 2019

There's nothing to prohibit a shareholder vote to replace a director who is deceased, but keep in mind that the executor for the estate gets to vote the shares for the deceased shareholder in that election absent a binding voting agreement among shareholders.

1 Answer | Asked in Estate Planning for California on

Q: Can a revocable trust be changed three times?

My husband and I are trustees of a revocable trust. The owner of the trust has changed it three times, has had one trustee in 2003, had a falling out with that one, got another one in 2010 had a falling out with that one and now has my husband and I since 2017. Each time she gets a new trust at a... Read more »

James Edward Berge answered on Aug 22, 2019

If she makes a change to a trust and expects it to have a binding effect on the trustee, she must inform the trustee of the change and the trustee needs to sign off on the change.

If she makes a change to a trust which changes the trustee, no notice is required to make the change, but once...
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2 Answers | Asked in Probate for California on

Q: Do I need a special order to quitclaim property? My order for probate says I'm Administrator with Full Authority

James Edward Berge answered on Aug 21, 2019

To quitclaim an interest in property, you're giving up whatever interest the estate might have in the property, and in certain circumstances, that might be the right thing to do, but make sure you clear it with all of the beneficiaries of the estate to avoid future liability claims, preferably... Read more »

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2 Answers | Asked in Estate Planning, Probate and Real Estate Law for California on

Q: Can you add someone to the deed to your house but Will that your home be sold/profits split Among people not on the deed

My grandmother recently added my aunt and her husband to the deed of her home and the was told she could require they sell the home and split the money between us 5 grandkids. Is this true in California. Doesn’t a deed supersede a will? And if my aunt is a beneficiary on all her other accounts... Read more »

James Edward Berge answered on Aug 18, 2019

There is a presumption affecting the burden of proof that title to property is what it is, and that challengers that seek to prove otherwise must produce clear and convincing evidence to the contrary. It’s certainly possible that grandma conveyed title with an understanding that the property... Read more »

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1 Answer | Asked in Estate Planning, Probate, Small Claims and Real Estate Law for California on

Q: Probate hasnt started can a non teanat place locks on rooms? Will a quite title action make an unsigned deed valid?

My grandmother passed and left the deed, leaving the home to her son and nephew, unsigned. Since then her son has collected 12,000 from the teanats and has only payed 6000 toward the mortgage. Is this considered rent skimming or embezzlement? After one teant moved out he placed a lock on the room... Read more »

James Edward Berge answered on Aug 14, 2019

An unsigned deed does not convey legal title to property and does not qualify as a Will. A probate will be required to convey title from grandmother to her heirs at law, typically her children and quite possibly her son. Since her son does not have title to the property, he cannot evict a tenant... Read more »

3 Answers | Asked in Estate Planning and Probate for California on

Q: mY PARENTS HAVE A LIVING TRUST I AM ONE OF 3 CHILDREN WHO HAS THE RIGHT TO SEE THE TRUST ? DO THE CHILDREN

MY DAD PASSED OVER 5 YRS AGO AND MY MOM WILL BE SOON

James Edward Berge answered on Aug 13, 2019

As long as your parents’ trust is revocable, no one has the right to see their trust, not even their children. The only time that you have a right to see their trust is when that trust or a portion of that trust becomes irrevocable due to the death of a trustor, or you are entitled to... Read more »

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2 Answers | Asked in Probate for California on

Q: How much time can a trustee take to sell the assets (house) from a trust and distribute the monies to the beneficiaries?

Our mother passed away Nov, 2018 and our brother is the trustee. He and one of my sisters took everything out of the house and my sister and her family moved into the house. The trustee will not respond to any of the beneficiaries, except my sister living in the house. The attorney for the trust... Read more »

James Edward Berge answered on Aug 12, 2019

A trustee has a duty to keep you informed, a duty of loyalty to you, a duty to account to you, a duty to treat you fairly, and a duty to make trust assets income producing, along with a duty to fully and faithfully comply with the terms of the trust. Without knowing more, it sounds like this... Read more »

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1 Answer | Asked in Probate for California on

Q: I am in probate with a hearing date in December. I would like to sell property which is in the probate.

Is there a fee for filing a Notice of Proposed Action? and how long does it take?

James Edward Berge answered on Aug 9, 2019

No. After your initial filing fee has been paid for your petition for probate, there are no fees for additional filings.

2 Answers | Asked in Probate for California on

Q: My mother died and left me her assets in her will, she purposely left her husband out of the will. is that legal?

the assets were only in her name on the accounts and totaled less than 100k. he gave her power of attorney over his financial affairs six months prior to her death. she used most of her money to pay for his care for dementia for those six months. his money is still in accounts with both of their... Read more »

James Edward Berge answered on Aug 9, 2019

For jointly held bank accounts, they pass automatically to the surviving joint owners regardless of what her Will says. For her share of all other assets, they will pass to you as beneficiary under her Will (without probate with a small estate affidavit). Check with a probate lawyer if you’re... Read more »

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2 Answers | Asked in Elder Law and Probate for California on

Q: How do I go about on getting my nephew off of.being power of attorney of.my mother whom.is 84 yrs Old.

This situation is very complicated.i have made elderly abuse report .gotten advice fro.jaime gallardo from legal aid

But nothing happen

This was like in 2011 or 2012.meanwhile a brother I have living at my mother bulked.her for $29,000. From her checking account out permission... Read more »

James Edward Berge answered on Aug 3, 2019

If your mom is competent, she can simply send her nephew a letter informing him that his power of attorney has been revoked and then notify everyone that you’re aware of who is relying on that power of attorney that it has been revoked. If your mom is incompetent, call Adult Protective Services... Read more »

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2 Answers | Asked in Estate Planning for California on

Q: Will any money in my trust account be paid back to creditors by the bank before being passed on to my beneficiaries?

James Edward Berge answered on Aug 3, 2019

Yes. Creditors get paid before beneficiaries. To avoid creditor claims, consider making your trust a joint tenancy or pay on death account.

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4 Answers | Asked in Probate for California on

Q: my father died intestate and there are five children no spouse and the assets are under $150,000. need california code §

we are donating things to a museum and they need a letter that states the code that says we inherit automatically as the children . I just want to quote the code but can't find it. and your web site structure requires one to click on numbers to read the code and this system means i could be hunting... Read more »

James Edward Berge answered on Aug 3, 2019

Google the search term for California Probate Code 13100 to obtain a small estate affidavit form and pay attention to the rules set forth in that section before using the form. Please note that everyone entitled to the property as intestate heirs must sign the form, meaning all of the children in... Read more »

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1 Answer | Asked in Probate for California on

Q: I'm set to inherit one-third stake in a property I do not want (that's still in probate). How do I yield this stake?

Grandmother did not have a will. My mother pre-deceased her. Property is being split between myself, my aunt, and my uncle. My aunt presently lives in the home, and intends to continue living in it. I have no interest in the property, and wish to yield my stake in it. However, her lawyer has... Read more »

James Edward Berge answered on Jul 28, 2019

You can absolutely refuse the gift from your grandmother. It’s called a qualified disclaimer if signed by you and delivered to the executor within 9 months of your grandmother ‘s death and you have accepted non of the benefits of ownership prior to the refusal. A qualified disclaimer is not... Read more »

1 Answer | Asked in Family Law and Elder Law for California on

Q: Can I be legally reimbursed (from my mother's bank account) for expenses incurred doing home repairs on her house?

My mother is 86 and in the early stages of dementia. My brother and sister live at my mom's house rent-free, but do little to care for her. They also are trustees of her living trust (which they coerced her to get) and will not show me that document. She needs many repairs to her house (sewer... Read more »

James Edward Berge answered on Jul 22, 2019

It depends on whether your power of attorney is durable, whether your authority under that power of attorney is effective immediately or only upon incapacity, and the express powers given to you. It also depends on whether that power of attorney remains effective or has been revoked.

2 Answers | Asked in Estate Planning for California on

Q: For a Will in the state of California do I have the option of 2 Witnesses or 1 Notary Public?

I prefer 2 Witnesses and a Notary but we are having a problem getting the 2 Witnesses.

James Edward Berge answered on Jul 22, 2019

No. Wills cannot be notarized in California. You have two choices: either two witnesses sign your Will in your presence at the same time that you sign it (a formal Will), or your Will is entirely in your handwriting (no witnesses; holographic).

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