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Questions Answered by James Edward Berge
1 Answer | Asked in Probate for California on
Q: Am I required to go through probate?

My father passed away without a will. My mother is still alive and was married to him for 53 years at time of death. They own one house together. My father loved cars and has a few in his name and my mother's name. They also had one joint checking account with less than $1000 in it.. There is... Read more »

James Edward Berge
James Edward Berge answered on Jun 28, 2021

Since your parents were married at the time of your father’s death and they owned their home together, no probate should be required, either because they owned it together as joint tenants with the right of survivorship or as community property.

2 Answers | Asked in Estate Planning and Probate for California on
Q: What all needs to be filed to remove a trustee in CA
James Edward Berge
James Edward Berge answered on Jun 10, 2021

I'm assuming you mean an involuntary removal of a trustee. For that, you'll need to file a petition with the probate court in the county where the trustee conducts its business and prove to the court's satisfaction of the need for the removal by clear and convincing evidence of... Read more »

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1 Answer | Asked in Probate for California on
Q: How backed up is probate court to appoint somebody administrator?
James Edward Berge
James Edward Berge answered on Jun 8, 2021

It all depends on the court. The probate courts in San Francisco and Santa Clara County are not scheduling hearing dates for up to 3 months out from the filing of a petition for probate due to COVID.

2 Answers | Asked in Probate for California on
Q: Who has the responsibility to file probate for a person that died without a will or trust & what if this was not done?

The husband of 8 months took over because he lived in HER house & he was able to ascertain what he could take after gaining access to her accounts. He was able to take everything (including her ashes) & he took most of it illegally. He was not named on any of her assets. He only paid her a... Read more »

James Edward Berge
James Edward Berge answered on Jun 3, 2021

No one has the responsibility to file a court petition to probate a decedent's estate. If there are no assets subject to probate, there's no need to file for probate or to be appointed as the personal representative for a decedent's estate. Anyone who is an heir to property... Read more »

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2 Answers | Asked in Real Estate Law and Probate for California on
Q: How do I sell my interest in property in Kern County I own with my sisters? They won't talk to me so I can't ask them

The property was purchased in the early 80's. My parents out us kids on the deed(?) so we all owned it. My mom died in 1989. My dad died in 2003. My step sister says the land us her moms and my dad wanted me to sign a quit claim. I know that's a lie.

My father and his wife took... Read more »

James Edward Berge
James Edward Berge answered on May 13, 2021

Jonathan meant to say “petition for partition of the property.” A partition is a judicial proceeding where you can request and a judge will order a forced sale of the property so that you can get your money out of the property. It’s available to you regardless of your limited interest in... Read more »

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3 Answers | Asked in Estate Planning for California on
Q: Is it better to choose an estate lawyer who is located in or near the county where parent died?

...because they know how things work in that county, they know county staff if document issues arise, and their travel fees will be lower?

James Edward Berge
James Edward Berge answered on May 9, 2021

I disagree with my colleagues. For probate matters, the fee is statutory and therefore fixed by law. So, regardless of who you choose to represent you, the cost will be the same. For estate planning matters, experience is more important than a local presence, especially in the internet and COVID... Read more »

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1 Answer | Asked in Probate for California on
Q: Is it possible to get a second opinion on a probate case. I feel my lawyer doesn't have my best interest at heart

Is it a common practice when you're lawyer files documents with the Court to have 16 documents sent back to you because they have been filed wrong??

James Edward Berge
James Edward Berge answered on Apr 28, 2021

No, I would hope not. Give me a call if you have any questions. Probate is my specialty.

2 Answers | Asked in Probate for California on
Q: Can my father go through my personal belongings in search for things he thinks he should have inherited?

I have lived in my grandparents home since my grandmother passed 30 yrs ago. I've lived here and raised a family here for 30 years. My uncle owned the house but didn't live there with us he lived in the house 3 doors down. He allowed my family and I to live there rent free. When he passed... Read more »

James Edward Berge
James Edward Berge answered on Apr 23, 2021

If you own the property, it’s yours to keep. If it was owned by your grandfather at the time of his death, it now belongs to your dad. It’s up to you and your father to prove ownership of the property by clear and convincing evidence. If you can prove that you bought the property or that it... Read more »

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2 Answers | Asked in Estate Planning for California on
Q: What is the time limit for an estate administrator to send a deceased person's Will to the adult children in CA?

No special circumstances that might cause a delay.

James Edward Berge
James Edward Berge answered on Apr 21, 2021

If the estate administrator has not yet filed a petition for probate, there's no requirement to send a copy of the Will to anyone, including the children. If anyone is in possession of an original Will, there is however a requirement to lodge (file) that original Will with the probate court... Read more »

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1 Answer | Asked in Probate for California on
Q: My uncle died in 2019, I provided notice a week after he died. He left property to me in his trust.

Now my other uncle has served me with a lawsuit a month ago to invalidate the trust. The property was left to me in the trust and I’ve already transferred into my name. What would prevent me from just selling the property or giving it to someone ?

James Edward Berge
James Edward Berge answered on Apr 19, 2021

Obviously, as the legal owner of the property, you can sell it or give it away, but if your uncle can prove by clear and convincing evidence that you weren't entitled to the property, then you can be held accountable for the sale proceeds or the fair market value of the gift, so sell or gift... Read more »

1 Answer | Asked in Probate for California on
Q: My uncle left me property in his rust, I transferred that property into my name. Now relatives are taking me to probate

To invalidate the trust and take the property. Can they do this ? It’s been 2 years and the property is in my name

James Edward Berge
James Edward Berge answered on Apr 19, 2021

More than likely, yes. Did you provide the contestants with notice of the trust as required by California Probate Code section 16061.7 when your uncle died? If not, there’s nothing to prevent the lawsuit from continuing until it’s resolved. There are many reasons why a trust may be invalid,... Read more »

2 Answers | Asked in Probate for California on
Q: Probate for unclaimed property?

My mother died years ago. All she had was a bank account that I took control of. No house of her own or valuables. She had no other children but me. Late last year, I received a letter in the mail from a company called OCWEN that she has unclaimed property in the value of $1273. I contact them... Read more »

James Edward Berge
James Edward Berge answered on Apr 14, 2021

You don’t need a probate for a small estate (under $166,250). Use a small estate affidavit and send the company a copy of the statute which authorizes the collection procedure (California Probate Code section 13100). Good luck!

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2 Answers | Asked in Estate Planning, Real Estate Law, Civil Rights and Probate for California on
Q: Do children have any rights to their deceased dad's stuff if his mother never informed them of his death?

2 days ago my brother told me that our dad died last March. I live in Missouri and my brother was in prison at the time.The coroner told me that our dad's mom made arrangements for everything. My father told me that there were things he was wanted me to have (pictures and a car). I'm the... Read more »

James Edward Berge
James Edward Berge answered on Apr 12, 2021

In California, the decedent’s children are the intestate heirs of the decedent and not the decedent’s parents. If dad died testate (with a Will), the beneficiaries under that Will are entitled to his property. Demand to know why your dad’s mom thinks she’s entitled to the property. If... Read more »

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2 Answers | Asked in Estate Planning and Tax Law for California on
Q: What can be done if "B" trust assets were donated benefiting "A" trust executor and second wife?

Father-in-law is Bill. His 1st wife is Mary. They had a trust that owned 20 rental homes. Beneficiaries were 3 kids. About a year after Mary died, Bill remarried. Ten yrs later, Bill and second wife Joyce created a trust. At that time, 10 rentals were put in a "B" trust (Mary's... Read more »

James Edward Berge
James Edward Berge answered on Apr 12, 2021

Yes, but it will take a voluntary settlement agreement by and among the trustee and all beneficiaries of both trusts, with or without court approval.

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5 Answers | Asked in Estate Planning, Real Estate Law and Probate for California on
Q: Should my partner and I purchase our home as a joint tenancy or TIC? We are unmarried; He has kids from prior marriage.

We both want to be able to remain in the home, make improvements, or sell if the other passes away. He wants to ensure his children to receive his share of the proceeds if the house is sold after his death. We may get married and have more children in the future. What is the best ownership... Read more »

James Edward Berge
James Edward Berge answered on Apr 12, 2021

I agree with the other responses, but would add that it's important for the two of them to have an agreement which governs their rights and obligations with respect to their shared ownership of property. Like a partnership agreement, it would have a stated term (length of years) and would... Read more »

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2 Answers | Asked in Estate Planning and Probate for California on
Q: I am 50/50 owner of a house My brother lives in now am i able to move in at anytime since i am 50 owner to in California

just found out i was part owner, brother kept trust from me.

James Edward Berge
James Edward Berge answered on Apr 8, 2021

If you hold title to the property as tenants in common (both of your names are on the deed), then both of you have the equal right to the use and possession of the property absent an agreement between the two of you to the contrary. But if this is trust owned property and your brother is trustee... Read more »

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1 Answer | Asked in Probate for California on
Q: Confused about the meaning of who is a "party of this cause"

I want to file a Request For Special Notice (Form DE-154) for a probate case in Los Angeles, California. I'm confused about statement #1 in the Proof Of Service By Mail part. It says "1. I am over the age of 18 and not a party to this cause. I am a resident of or employed in the county... Read more »

James Edward Berge
James Edward Berge answered on Mar 28, 2021

No, your husband is not a party to the cause if he’s not a beneficiary or an heir to the estate, or otherwise has an interest in the outcome of the case. Marriage by itself does not make him a party to the cause. However, that being said, you would be advised to find an independent person in... Read more »

1 Answer | Asked in Probate for California on
Q: original will with petition to determine succession to real property (no probate proceeding pending/has started)?

Hi. I've read that you would need to provide a copy of the will to go along with the petition. I'm assuming the copy would have to be certified, yes?

Also, if not filed with the court already (but should have been done within some time frame that I just found out about, so... Read more »

James Edward Berge
James Edward Berge answered on Mar 25, 2021

All original Wills get lodged (filed) with the Court separately from the Petition. Only original Wills, not certified Wills or copies of Wills. Once lodged, your Petition can reference the date of the filing with the Court.

There is no penalty for the late filing of the Will. However, if...
Read more »

1 Answer | Asked in Estate Planning and Probate for California on
Q: Claim Homeowner exemption on deceased parent's home

My father passed away in October, 2020. He is a resident in Santa Barbara County. I have a probate case filed with probate branch in Santa Barbara County. I received a Homeowner Exemption termination Notice from county assessor's office. I live in Texas. I would like to know which option... Read more »

James Edward Berge
James Edward Berge answered on Mar 22, 2021

Since your father passed away before 2/15/2021, you should qualify for the parent to child reassessment exemption under California Prop 13/58 regardless of whether this is your principal residence, a second home, rental home, or commercial property. The homeowner exemption merely reduces your... Read more »

3 Answers | Asked in Estate Planning and Probate for California on
Q: Is there anything that has to be filed when one person in a joint trust dies? If so can I find out through county record
James Edward Berge
James Edward Berge answered on Mar 14, 2021

If the trust is the owner of real estate, you might find an affidavit of death of trustee filed in the local recorder’s office for the county where the land is situated. You might also find an original Will of the deceased trustor located in the court clerk’s office for the county in which the... Read more »

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