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Questions Answered by James Edward Berge
2 Answers | Asked in Estate Planning and Real Estate Law for California on
Q: I have a question on CA prop 13 transfer between parent and child.

My mom relocated to a managed care facility last year. If I purchase the home she lived in for 50 yrs, will I be excluded from reassessment of the property and be able to continue getting the prop 13 tax advantages and if so, does it need to be my primary residence?

James Edward Berge
James Edward Berge answered on Nov 14, 2019

Whether it's a sale or gift of property to you by a parent, you should still qualify for the parent to child reassessment exemption under Proposition 58 which extends Prop 13 protection to the child, regardless of whether that child is a minor or an adult. If the property being transferred is the... Read more »

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3 Answers | Asked in Estate Planning and Real Estate Law for California on
Q: What is the cost of a durable POA in CA? My sister resides in CA. She had a stroke in July; now in rehab facility in CA.

I need to obtain a POA for her. I'm in Florida. The only assets she has, to my knowledge, are 2 cars (in CA), a bank account (in CA - don't know if anything is in at this point) and some land in FL (which she was considering selling before her stroke). She also as a list of credit card accounts. We... Read more »

James Edward Berge
James Edward Berge answered on Nov 13, 2019

Besides a statutory general durable power of attorney which you can readily find online, you should also see if the bank or other financial institution has a downloadable power of attorney specific to their institution. Banks generally like their own form power of attorneys more than they like... Read more »

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2 Answers | Asked in Estate Planning and Probate for California on
Q: What court order do I need to claim an unclaimed inheritance?

My father was left money from and aunt. He did not claim it and he has since died. The county finance department says I need a court order to claim it. I am his daughter and I have no idea what I need to do. The amount is less then $6000.00.

James Edward Berge
James Edward Berge answered on Nov 8, 2019

You might need letters testamentary from a probate court in order to claim what previously belonged to your father. You might however be able to avoid the need for a probate court order if the sum total of your father's estate is under $150,000 by the filing of a small estate affidavit with the... Read more »

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2 Answers | Asked in Probate for California on
Q: inventory/appraisal goes to court first before going to probate referee?
James Edward Berge
James Edward Berge answered on Nov 3, 2019

No. When you file your petition for probate, you should get the name of a probate referee assigned to your case by the court. You would then complete an inventory and appraisal of all assets held in the probate estate and send it to the probate referee for appraisal work. Upon its return by the... Read more »

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3 Answers | Asked in Estate Planning for California on
Q: As a heir, do I have to pay capital gains on money I recvd from property sold from a Testamentary Trust in California?

My mom has 6 rental homes. She just died. It appears to be a 50/50 split, with her trust and my father's who died in 1971. Trusts list me and my 3 brothers as beneficiaries. The properties are to be sold. I have heard the capital gains tax will be 33% or more.

Thank you

James Edward Berge
James Edward Berge answered on Oct 25, 2019

If the trust sells the asset prior to distribution to beneficiaries, the trust reports the capital gain or loss and pays the tax, unless the sale occurs in the final year of the trust, in which case, the capital gain or loss is reported to each of the individual beneficiaries on a separate IRS Form... Read more »

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1 Answer | Asked in Probate for California on
Q: What happens if a conservatee in California wants to marry.

My serious boyfriend has a conservator, we wants to get married but I don’t understand the process and what will happen with his conservatorship.

James Edward Berge
James Edward Berge answered on Oct 23, 2019

Unless the court order which established the conservatorship prohibits the conservatee from marrying, the conservatee has the absolute right to marry without seeking permission from anyone. Despite the marriage, the conservatorship continues until the court orders otherwise.

2 Answers | Asked in Elder Law for California on
Q: Can a home be sold without a joint owners agreement?

My father has Dementia and does not want his house sold..his wife's family listed it without his knowledge

James Edward Berge
James Edward Berge answered on Oct 23, 2019

No. If property is held in joint tenancy or tenants in common or community property (any form of joint ownership), all owners must agree on the sale of the property. If your father has dementia and cannot act for himself, it's certainly possible that he may have previously authorized someone to... Read more »

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3 Answers | Asked in Probate for California on
Q: What county do you file probate in when the dead person and the person in charge of the will live in different counties?

In California USA

James Edward Berge
James Edward Berge answered on Oct 17, 2019

In general, you file in the county probate court wherein the decedent resided at the time of death, and not where the executor resides, but in cases where the decedent resided outside of California at the time of death but owned real property located within the State of California, you would file... Read more »

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1 Answer | Asked in Estate Planning for California on
Q: If a trust has a trustee and co trustee, a bank, what happens when the bank is bought by another bank.

Both hu and wife have passed away. No children. Beneficiaries are nieces and nephews.

James Edward Berge
James Edward Berge answered on Oct 7, 2019

The new bank becomes the new cotrustee.

2 Answers | Asked in Estate Planning and Child Support for California on
Q: Brother and I are coexecutors of trust. He owes $250,000 to creditors, how do I protect my half of inheritance ?

Trust consist of two homes. Total mortgage owed on both homes is $180,000. We live in San Francisco Bay Area, San Carlos. I know California tax laws are INSANE! I don’t want to make a wrong decision that could have lasting effects on me financially.

James Edward Berge
James Edward Berge answered on Oct 5, 2019

Nina is right of course, but the answer is even simpler. Your brother’s debts are not your debts. His debts are also not your mother’s debts or debts of her trust. Presumably you are entitled to one half of your mother’s trust after her debts have been paid, and your brother is entitled to... Read more »

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3 Answers | Asked in Estate Planning, Contracts and Probate for California on
Q: Do beneficiaries of a trust have a right to access of the same info as the Trustee/Executor?

My estranged father passed away and left a will & trust stating to divide his estate up equally between his 5 children. None of his children had contact with him for over 15 years. He had a large sum of money piled up in various investments that no one knew about. The Trustee, who is also a... Read more »

James Edward Berge
James Edward Berge answered on Oct 3, 2019

I agree with the answers posted by the previous attorneys. You should also know that the trustee's attorney works for the trustee and not the trust or the beneficiaries. The attorney-client privilege exists with respect to confidential communications between them, including emails and other forms... Read more »

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2 Answers | Asked in Probate for California on
Q: I was wondering if an aunt can sell my friend's mom's house, when there's a will given to the friend? (mom has dementia)

I read a bit into this and i feel like a surrogate's court citation is the right way to go.

The details on the situation is that, my friend was adopted by her adoptive mother,

The relatives treats my friend like a nuisance, My friend only has her mother, so the aunt and her daughter... Read more »

James Edward Berge
James Edward Berge answered on Sep 22, 2019

The Will confers no rights to your friend in the house until his mom dies. Until then, the house may be the only financial resource the mom has to take care of her needs. A sale of the home may be necessary under the circumstances, but it can only be done by an agent acting on mom’s behalf... Read more »

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1 Answer | Asked in Real Estate Law and Probate for California on
Q: If I'm Admin with full authority to manage estate, can i sign a Quit claim deed to a property? Just transfer no money.

I feel I can do anything I want as long as I notify the other beneficiaries. But what form i use to do this and how i send it by mail or what? And if they dont want me to how will they let me know? What happens if they dont agree and if i insist? What is this called?

James Edward Berge
James Edward Berge answered on Sep 17, 2019

With full authority under the IAEA, you have the authority to sign a deed in connection with a sale transaction assuming you have the consent of all beneficiaries, but not the authority to make a distribution of the estate without court approval. If you do not have the consent of all... Read more »

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
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...
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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
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
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
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
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
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
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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