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Questions Answered by James Edward Berge
1 Answer | Asked in Estate Planning, Real Estate Law and Foreclosure for California on
Q: can the trustee convey property into my irrevocable special needs trust with a lean without my consent or knowledge.

If they convey the property with the 1st mortgage then stop paying so that lender calls loan due on sale to pay lender off and trustee:/seller agent

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

Assuming the trust agreement authorizes the trustee to accept property from any source, whether encumbered or not, beneficiary or trustor approval is not required.

2 Answers | Asked in Estate Planning and Probate for California on
Q: My father passed away a couple months ago, my step mother told me the next day. She has not returned phone calls or txt

I have had minimal contact with my step mother since my father passed away. She won’t text much or talk on the phone very long, now won’t answer at all. Got a copy of his death certificate and found out he died in California and recently bought a house before he passed. No one in the family... Read more »

James Edward Berge
James Edward Berge answered on Jan 26, 2020

If you’re wondering about your inheritance rights, consult a probate attorney. In general, if the property was held by your father and stepmother as joint tenants or simply as husband and wife, as community property with right of survivorship, your stepmother now owns the property without the... Read more »

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2 Answers | Asked in Probate for California on
Q: Father passes,will said sell home divide between three siblings,my friend ended in hospital and signed his portion

Of estate to me three witnesses, 3 days later he passes is this legal for me to get his wish.

James Edward Berge
James Edward Berge answered on Jan 26, 2020

Assuming your friend’s Will is valid, yes, you’re now entitled to your friend’s 1/3 ownership interest in his father’s estate. Two probates are needed: one for the father’s estate and a second for the son’s estate. Both should be opened right away. The father’s estate cannot close... Read more »

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3 Answers | Asked in Real Estate Law and Probate for California on
Q: How can one trust beneficiary purchase shares of a home from two other beneficiaries? Revocable trust.

I understand successor trustee can grant deed 1/3 of property to me, as parent to child transfer, then I can purchase my two brother's shares through escrow. What are the details of this process?

James Edward Berge
James Edward Berge answered on Jan 25, 2020

The other way that Nina mentions in her post involves borrowing money by the trust secured by trust-owned property (the home) prior to distribution to the beneficiaries in an amount necessary to equalize the distributions to the kids: house (subject to new debt) to one and cash (proceeds from... Read more »

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2 Answers | Asked in Probate for California on
Q: Father lived in Nevada with no assets to distribute in Nevada so probate was never opened, but he owned land in Arkansas

Can I open probate in Arkansas if it was never opened in Nevada? I have his Will which designates me as executor of all assets. The land is worth less than 25k

James Edward Berge
James Edward Berge answered on Jan 23, 2020

Yes, you can. You may even be able to avoid a full probate by a small estate affidavit procedure under the laws of the State of Arkansas. Best to consult with an Arkansas probate attorney for availability, pricing, and other details.

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1 Answer | Asked in Estate Planning and Probate for California on
Q: Do I notify the lender that my parents have passed? The mortgage is current
James Edward Berge
James Edward Berge answered on Jan 22, 2020

It’s not necessary as long as you keep making the mortgage payments, but if you want to know the outstanding balance or want your monthly statements to be sent to another address, then yes, let the lender know of your parents death. Now, if you’re dealing with a reverse mortgage, the lender... Read more »

2 Answers | Asked in Estate Planning and Probate for California on
Q: Dad passed oct 2019, mom passed dec 2019. There is no will & there is a mortgage. Do I continue to pay house?
James Edward Berge
James Edward Berge answered on Jan 22, 2020

Yes. If you fail to pay the mortgage, you will lose the home to foreclosure. Death of a borrower does not trigger a due on sale clause. If you make the mortgage payments, keep track of them all and claim reimbursement from the estate when you can. Without a Will, the children will inherit the... Read more »

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1 Answer | Asked in Probate, Estate Planning and Landlord - Tenant for California on
Q: I was my mothers care taker and I was living in her house when she died,my question is can my siblings evict me?

My mother left no will it's got to go through probate,also I have been the sole care giver and have lived there for 5yrs what are my rights.

James Edward Berge
James Edward Berge answered on Jan 22, 2020

Your siblings have no legal authority to evict you from your mother's house. Only a personal representative for your mom's estate would have the authority to do so, and to become a personal representative requires a probate. Until that time, you have every legal right to remain in the house. If... Read more »

2 Answers | Asked in Probate for California on
Q: Mother lived in Pennsylvania for her entire life until she relocated to California in November of 2019.

She moved to California with the intention of living the rest of her life near family in California and disposed of all her property in Pennsylvania prior to relocating. Once she moved to California, she stayed in California continuously and moved into an assisted care facility (this required her... Read more »

James Edward Berge
James Edward Berge answered on Jan 15, 2020

A person is a resident of the State of California when he or she lives in the State and intends to remain in the State for the indefinite future.

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1 Answer | Asked in Estate Planning and Child Custody for California on
Q: Hi my son is a beneficiary of my father in law for his life insurance

Now my father in law passed away then my son is still minor, the insurance ask us court appointed guardian to get my son’s claim. We went to court and they did not help for guardianship estate, we cannot afford to get a lawyer. We dont know what to do to get certificate from the court stating... Read more »

James Edward Berge
James Edward Berge answered on Jan 13, 2020

The insurance company is asking for letters of guardianship which can only be granted to a guardian by a probate court. Merely being the parent of a minor is insufficient authority to claim insurance money belonging to a minor.

A court cannot give legal advice, nor can a legal document...
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1 Answer | Asked in Estate Planning and Probate for California on
Q: Does a probate need to have all assets assigned into it to close?

Only parent dies with trust. Multiple properties have to be sold. Beneficiaries are 3 brothers and one sister. Sister dies unexpectedly a month after parent dies. Now we have to go through probate as sister left no trust or will. Her share of parent's trust will have to go through probate.... Read more »

James Edward Berge
James Edward Berge answered on Jan 10, 2020

More than likely a probate will need to be opened for sister's estate before you're allowed to close parent's estate. Once an executor is appointed to sister's estate, perhaps a deal can be struck among the beneficiaries of sister's estate allowing for an in-kind distribution of estate assets to... Read more »

1 Answer | Asked in Federal Crimes, Probate, White Collar Crime and Identity Theft for California on
Q: Would a criminal court judge grant a exparte petition in a probate matter ?
James Edward Berge
James Edward Berge answered on Jan 10, 2020

No. Both are separate branches of the superior court, but both have separate functions: a criminal court adjudicates criminal law matters and a probate court adjudicates matters affecting trusts and estates. Rarely will one branch of the superior court step on the toes of another branch of the... Read more »

1 Answer | Asked in Estate Planning for California on
Q: How to set up a trust for your beneficiaries, while waiting for payment on a parents trust to be distributed?

Mom died, properties need to be sold to distribute to beneficiaries. I am a beneficiary due to inherit about $500,000. I have cancer. How can I make my own trust for people I want to be my beneficiary, when I don't yet have the amount I am due to receive from my moms trust? It will take a long... Read more »

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

Assuming it's possible in your mom's trust, assign in writing all of your right, title and interest in your mom's trust to your revocable living trust. It's possible if your mom's trust does not have a standard spendthrift provision in it. If it does, then you'll have to create a standard Will... Read more »

1 Answer | Asked in Estate Planning and Real Estate Law for California on
Q: Can an exactor of an estate sign off on a reconveyance
James Edward Berge
James Edward Berge answered on Jan 7, 2020

It's the lender who signs off on a deed of reconveyance when a loan secured by real property has been paid in full. If the decedent and/or the decedent's estate loaned money to someone and received payment in full, yes, the executor of the estate would sign off on the deed of reconveyance. No... Read more »

1 Answer | Asked in Probate for California on
Q: Does the executor of a trust have to wait 120 days to list real property for sale in California?

Three out of 5 homes will become empty with no tenant in a month. Beneficiaries would like to get these homes listed to sell. Can we waive the 120 day period to allow the homes to be listed?

James Edward Berge
James Edward Berge answered on Dec 29, 2019

To clarify your question, an executor is a legal representative for a probate estate and a trustee is a legal representative for a trust. An executor acts under court supervision; a trustee does not. In general, both have the legal authority to sell real property immediately upon their... Read more »

1 Answer | Asked in Estate Planning and Real Estate Law for California on
Q: My father passed away, my mom now owns their home. Will she end up paying capital gains tax if she airbs her home out

Home in California, bought for 45k in the 1960s and now worth a million.

James Edward Berge
James Edward Berge answered on Dec 27, 2019

If it can be established that their home was held as community property, then the adjusted basis of their home would have been stepped up to its full fair market value at the time of your father’s death for income tax purposes, meaning there would be no capital gain as of your father’s date of... Read more »

1 Answer | Asked in Probate for California on
Q: Conservator vs trustee of revocable trust, who makes the medical decisions?

Court appointed conservator of estate and person, or trustee of revocable trust, who's in charge? And if there is seperate person, me, who has AHCD, do i have final say? Trustee is running the show now and im kept in the dark

James Edward Berge
James Edward Berge answered on Dec 24, 2019

A conservator of the person or an agent acting under an advance health care directive makes medical care decisions. A conservator of the estate or the trustee of a revocable trust pays the bills.

1 Answer | Asked in Estate Planning and Probate for California on
Q: Am I considered a niece/nephew in inheritance succession if my father (who was a nephew) is deceased?

I distant family member passed away, and I've been notified that I am an heir-at-law.

They don't have any living children, parents, or siblings, but there is 1 niece and 1 nephew. Here's the slight difference-my deceased father was also a nephew.

-- Does that make me an equal heir... Read more »

James Edward Berge
James Edward Berge answered on Dec 24, 2019

Yes, you now stand in the shoes of your father and will receive what whatever he would have received had he lived, which sounds like a full one-third share of the estate. Specific gifts go to specific devisees. You are considered a remainder beneficiary. You will be mailed notice of the date,... Read more »

1 Answer | Asked in Probate for California on
Q: If I opened probate in San Francisco, CA and discover no assets to be probated, what do I have to file to close probate?
James Edward Berge
James Edward Berge answered on Dec 17, 2019

It takes a petition to begin a probate and a petition to close a probate (whether or not there are any assets in the probate estate). The petition to close the probate simply alleges that there are no assets in the probate estate to administer and asks that the matter be closed.

1 Answer | Asked in Probate for California on
Q: How much weight does court give to probate priority/order of preference, w/groundless but contested matter?

You wrote in December: The Probate Code determines priority appointments.

In a contested conservatorship (daughter, on East Coast with relatives & my background is clean), is Court likely to override/ignore personal/family animus & follow order of preference, esp. as I am designated... Read more »

James Edward Berge
James Edward Berge answered on Dec 16, 2019

The court gives great weight to order of priority because statute requires it, but between two petitions of equal priority, the court has great discretion to decide between the two. If there’s only one petition but a beneficiary of the estate has reasonable grounds to contest the appointment due... Read more »

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