I need advice and assistance in how to declare the Settlor incapacitated which the Trust allows for. Relatives are trying to remove him from his home, acting only in his name, and I need to have legal authority to provide for the Settlor's care and welfare under the Trust before they act.... Read more »
You need to read the trust agreement. Look for the definition of incapacity. Upon the incapacity of the settlor-trustee, if you are named as the next trustee, prove the settlor is incapacitated using the definition of incapacity. Frequently incapacity must be proven by a sworn affidavit of at...Read more »
A beneficiary's DPA's lawyer is asking questions/contesting about the administration of a Trust for which I am the Successor Trustee. Does the DPA or his lawyer have rights to intervene in the Trust Administration on behalf of the beneficiary?
If the DPA permits it, then yes, the DPA can make reasonable inquiries of the trustee about the trust administration. Get a copy of the DPA and read it. Look for name of principal, name of agent, effective date (some are only effective upon the incapacity of the principal, and the powers...Read more »
In CA, I remember that in order to use this the estate's value must fall below $165,250(?) and that no probate proceeding is pending/has been granted or, if it has, consent must be given by the exec/admi. of the estate.
And since a probate referee is also required for a summary... Read more »
I've been living in the same house with both my parents for 20+ years and we're all on the title to the house as TIC with each of us having 1/3 interest on the house. About 4 months ago my dad passed, leaving a Will saying that his entire interest in the house (basically his 1/3) goes to... Read more »
I agree with Nina on her response regarding your loan.
As far as who gets your father's 1/3 share of the house, that will depend on whether he had a last Will or not. If he had a last Will, his 1/3 share will pass to the beneficiaries named under that Will but only after your obtain a...Read more »
For example, In the case of a simplified probate where the decedent only had their share of the house that they shared with two other people (including the adult child) and that share were to be passed down to the adult child via Will. Since the adult child is entitled to receive that remaining... Read more »
If the executor, administrator or personal representative waives their right to statutory fees, that simply increases the amount passing to the remainder beneficiaries of the estate (less expense, more money for the beneficiaries).
In California, under the laws of intestacy, when a married person dies survived by a spouse and 1 child, the spouse takes 1/2 of the separate property and the child takes 1/2. When a married person dies survived by a spouse and 2+ children, the spouse takes 1/3 of the separate property and the...Read more »
In a community property state, such as California, the house will receive a step up in its cost basis from acquisition cost to its fair market value when the first spouse dies. When you sell the property, you’ll only pay capital gains tax on the difference between the net sales price received...Read more »
When son died, the property most likely received a step up in cost basis for income tax reporting purposes to its then fair market value as of son’s date of death, which means there would be no capital gains tax payable on the proceeds of sale up to the property’s new fair market value cost...Read more »
My Dad received amended copy of his living trust 3 days before he died and had not signed them. He did contact estate attorney and confirmed draft. I don't believe signing them was exclusive, but I do know that my dad would want his last wishes honored. I know there must be mitigating... Read more »
If he didn’t sign the amendment, it’s ineffective. It doesn’t need to be notarized, but it does need to be signed by the trustmaker. Sorry to be the bearer of bad news, but to tell you otherwise is just wishful thinking.
Witness declaration does not include "under penalty of perjury" verbiage. Drafting attorney says it was not required in 1968. Probate examiner says will is not self-proving. All witnesses are deceased.
It's true. The words "under penalty of perjury" were not required in 1968, but the probate examiner is also correct (at least they are interpreting the rules these days): to be a self-proving Will, the magic words must appear in the witness attestation clause, or you'll have to...Read more »
It really depends. In California, a formal notice must be mailed to all beneficiaries of a trust when a revocable trust becomes irrevocable upon the death of the trustor which gives the recipient up to 120 days to contest the trust. Until that notice period ends, a trustee would be at great risk...Read more »
This estate planning binder. He gave me the spare keys to his home to retrieve it but all the docs were stolen from his estranged son whom he does not trust. He told this to our other family members times. So now the son refuses to let me see the will. I'm afraid he would fraudulently change... Read more »
Have you called the attorney's office that prepared the Will? They should have a copy. A copy can be submitted to probate if there's a good reason to believe the original cannot be found and was not revoked. You can also file a petition for probate to have yourself appointed as...Read more »
The son can accept his nomination as executor under a Will or petition to become the administrator of a decedent’s estate without a Will, but in both cases, a probate court will need to formally bless the appointment after a formal hearing on the matter.
If the retirement account was an IRA, his daughter gets the money as primary beneficiary even if the account was community property, because spousal consent is not required to setup or change a beneficiary designation on a traditional or Roth IRA account. If the retirement account was a current...Read more »
It’s a common situation, but every bank and credit union and other financial institution has its own rules. My experience as an estate planning specialist with over 25 years in the field is to simply have your dad endorse the check on the reverse side as follows: “For deposit only”, and then...Read more »
In general, a stepson is not an heir at law. When someone dies without a Will (intestate), the decedent's property generally passes to a surviving spouse, if any, or children who are then living, or their issue by right of representation; but if none, , then to the parents of the decedent or...Read more »
A former spouse named several people as beneficiaries, to receive some percentage of the value of an investment account. The executor states that the amount to be received is the value on the date of death, but the account was not terminated. If the assets increased in net value, are the... Read more »
No doubt, your answer lies in the interpretation of the language used in making the special gift, but without seeing it, I would opine that the relevant date is date of distribution rather than date of death.
Call the State Bar of California and see what they recommend. If you need to probate your sister’s estate, you can also petition the probate court to appoint a lawyer as a law practice administrator to complete your sister’s cases and perhaps find a buyer for her practice.
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