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Questions Answered by James Edward Berge
1 Answer | Asked in Probate for California on
Q: Father died, brother is executor of trust. 75% of all assets, I am living in house since 6/3/21. Caretaker.

How much notice must brother give me to move out?

James Edward Berge
James Edward Berge
answered on May 31, 2022

Sorry to say, but it depends on your particular facts and circumstances. If your brother has already been confirmed as the executor of the estate, he has a duty to marshal the assets of the estate and get them ready for sale or distribution according to your father's Will or by intestacy.... Read more »

2 Answers | Asked in Estate Planning and Probate for California on
Q: Transfer of real property, intestate estate. 2 of the 6 heirs hope to take over the property, all heirs agree. What now?

I am the personal representative and heir for my father's intestate estate in CA. In regards to my father's real property valued over $166k, the property rights, to my understanding, defaults to be equally divided between his 6 children (heirs). There is an existing mortgage on the... Read more »

James Edward Berge
James Edward Berge
answered on May 6, 2022

I agree with Gina. It sounds like you will need to file a petition for probate and ask for the appointment of an estate administrator before you try to refinance the property, and the six of you should be able to agree on whatever you want provided it’s in writing and your settlement agreement... Read more »

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2 Answers | Asked in Estate Planning, Real Estate Law and Probate for California on
Q: I live in my dad's CA rental, when he passes this property to me, will it be reassessed as it is not his primary home?

This is regarding property tax reassessment due to the newly passed Prop 19 in California. He lives in a different residence that he plans to leave to my brother. I rent his other house now and he wants to give it to me now (if the tax implications are more favorable for him now or myself later) or... Read more »

James Edward Berge
James Edward Berge
answered on Mar 21, 2022

Unfortunately, yes. To claim a parent to child reassessment exemption under Prop 19, both the parent and child must occupy the property as their principal residence.

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2 Answers | Asked in Estate Planning and Probate for California on
Q: Dad died Wed. and my sister (100% beneficiary) wants to petition LA court to add me to Living Trust. How do we do this?

My father died on Wednesday and we are two children but my father left everything to her (she is 100% beneficiary). So how does she now petition the court to add me which she wants to do to make it a 50/50 split. How exactly do we do this? Do we need a lawyer? It is a simple trust with only a... Read more »

James Edward Berge
James Edward Berge
answered on Mar 21, 2022

I agree with John. Court may not be be necessary. Talk to an estate planning lawyer about the possibility of a qualified disclaimer, or consider a straight gift from your sister after she collects the money from the trust, or perhaps a simple assignment by her of a half share of the trust out of... Read more »

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1 Answer | Asked in Estate Planning and Real Estate Law for California on
Q: When is a house owned by a trust reassessed?

My mother-in-law died in 2014. Her house was owned by a trust for which she was the trustee. The house was then held by the trust as a life trust for two of her children. The life trust ended in January of this year, the house sold in two weeks and the net proceeds are to be distributed to her... Read more »

James Edward Berge
James Edward Berge
answered on Feb 2, 2022

The income tax cost basis of the house would be reset to date of death fair market value when grandma died, not when her kids died, assuming that none of the kids had a general power of appointment over disposition of the property when they died.

1 Answer | Asked in Estate Planning, Family Law and Elder Law for California on
Q: My mother changed the trustee of her living trust from one child to another. There are four siblings and the one who is

now the trustee refuses to share any information about the estate or trust with her three siblings. She has now had Mom diagnosed with dementia. Are we entitled to a copy of the trust and/or any other estate information while Mom is still living? How do we get a copy of the trust?

Thank you

James Edward Berge
James Edward Berge
answered on Jan 27, 2022

If mom was diagnosed with dementia, then yes, you and your siblings are all entitled to a copy of the trust and certain information under the terms of a new law which became effective on 1/1/2022. I would advise you to consult with an estate planning attorney to determine and enforce your legal... Read more »

3 Answers | Asked in Probate for California on
Q: Do we have to go through probate for just a mobile home?

My father just passed away. He only had $30,000 in a bank acct that my brother is on too. He left ZERO debt and there is no dispute between sibling. There is just a mobile home valued at about $25,000 at most. Do we have to go through probate because there was no will? How do transfer it so that we... Read more »

James Edward Berge
James Edward Berge
answered on Jan 20, 2022

I agree with Nina. It's a simple matter to collect an asset with a small estate affidavit. You can find a sample of a small estate affidavit for the bank account on the Sacramento County Superior Court website (which is good for any county in the State of California) (good instructions too,... Read more »

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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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