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Questions Answered by Sally Bergman
2 Answers | Asked in Estate Planning for California on
Q: Asset Inventory and Apprisal

My attorney helped me filed a probate petition in Santa Barbara County, California. I am in the process to prepare a schedule of assets and debts for inventory and appraisal phase of the probate case. 1. Should I list non-probate assets such as my dad's 403(b) plan and his individual... Read more »

Sally Bergman
Sally Bergman answered on Jan 11, 2021

What struck me as unusual about your question is that you mention that you have an attorney, but it doesn't seem that you are receiving much guidance from him/her. I note that you are from Texas, so I'm wondering if perhaps an attorney friend there assisted you to file the Probate... Read more »

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1 Answer | Asked in Divorce and Estate Planning for California on
Q: In 1996 mom married a man in prison for life. They lost touch yrs ago. She now wishes to divorce him,as she has the

Onset of dementia. She wishes to protect her home, inherited from my grandparents. Who purchased it for her and I in 1972. In Ca can she legally exclude him from her will or trust? How would she go about this?

Sally Bergman
Sally Bergman answered on Nov 17, 2020

Your question crosses over into both family law and estate planning. Your mother's interest in that property would be her own separate property that she is typically allowed to pass to anyone she chooses. There are occasions, however, when the other spouse may gain a community property... Read more »

3 Answers | Asked in Estate Planning and Probate for California on
Q: If my father left me money in his trust, can the trustee change that trust when he passes away
Sally Bergman
Sally Bergman answered on Oct 29, 2020

While it's possible the trustee may have the power to control the circumstances, timing, and amount of any trust distributions, it's not likely the trustee can change the provisions of the trust. There are times, for example, when a beneficiary may have a substance abuse issue. In those... Read more »

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3 Answers | Asked in Estate Planning, Real Estate Law, Tax Law and Probate for California on
Q: If I inherited my father's house after he passes, and I sell it, do I get hit with capital gains tax?

My father owns a house outright in California. I am the only child, and the house is in trust to be inherited down to me. My mother passed 2 years ago. If I in turn sell the house after my dad passes, do I get hit with capital gains tax?

Sally Bergman
Sally Bergman answered on Oct 18, 2020

When your mother passed two years ago, the property received a "step-up" in basis to market value at that time. When your father dies, the property will get a second step-up in basis to the then market value. This assumes the property was community property and that the trust did not... Read more »

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1 Answer | Asked in Estate Planning and Probate for California on
Q: My mother and father had a trust. My mom died and 7 years later my dad remarried. His new wife and he drew up a trust.

He died about 10 years after and I was told (while he was alive) that in their trust he specified that I receive $350,000. I believe my two children are also named for $175,000 each. He has been gone about 2 years now and his wife will NOT talk about the trust. I do not have a copy of the trust... Read more »

Sally Bergman
Sally Bergman answered on Oct 15, 2020

I see you are in Glendale, AZ, but am assuming your father had resided in California. I'm answering your question based on California law. You have an absolute right to see a copy of the trust, even if somehow you were disinherited from it. An attorney would send a demand letter and if she... Read more »

1 Answer | Asked in Real Estate Law and Estate Planning for California on
Q: If I am a co-trustee and on title, can I be denied access to inspect property that is occupied by the other co-trustee?

My mother passed away and made her partner of 15 years and me, co-trustees. Her partner is allowed to occupy the house for 5 years, then the home and most of the contents pass to me. Her partner has not allowed me to visit the property and refuses to communicate about the actual maintenance of... Read more »

Sally Bergman
Sally Bergman answered on Oct 12, 2020

Most trusts that allow a right of occupancy for a period of years will specify in great detail exactly what the respective duties, rights, and responsibilities are for both the occupant (your co-trustee) and the ultimate beneficiary (you). Typically, these rights of occupancy grant the ultimate... Read more »

2 Answers | Asked in Estate Planning, Banking and Probate for California on
Q: I have a check from PayPal from a deceased relative's accounts. The check is drawn from a Wells Fargo account.

I submitted the California Small Estate Affidavit to PayPal with a notary attachment. However, the check was made out in my deceased relative's name only. Which is not how other checks have been made out.

Two banks that I do business with, including Wells Fargo, have declined to... Read more »

Sally Bergman
Sally Bergman answered on Oct 7, 2020

If you are the successor trustee of the deceased's trust or administrator of the probate estate AND you have opened a bank account in the name of the trust or estate, you should be able to deposit it into that account. If the total assets are less than $166,250, your relative died this year... Read more »

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1 Answer | Asked in Estate Planning for California on
Q: My dad had an acct that was in his trust and when chase bought them out they made a mistake and listed it not in trust
Sally Bergman
Sally Bergman answered on Oct 6, 2020

There may be relatively simple ways to fix this issue. I'm assuming your father has passed away? Depending upon when he died and the amount in the account, you may be able to use a small estate affidavit to transfer to the trust. These forms are available on the Internet, but I would be... Read more »

3 Answers | Asked in Elder Law and Estate Planning for California on
Q: My 89 year old father (widower) in Arizona wants to set up a living trust for his mobile home and car.

My father still has a small mortgage on the home. He already has a Will and Durable POA. He is interested in creating a mechanism such as a living trust by which his home and minivan can be transferred to me as his sole heir without the necessity of the property going through probate. His Will... Read more »

Sally Bergman
Sally Bergman answered on Sep 26, 2020

You need to seek the advice of an Arizona attorney where the Medicaid rules are very different from California's Medi-Cal rules. The probate rules are also very different.

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1 Answer | Asked in Estate Planning, Collections and Public Benefits for California on
Q: Would a lien on my brother's inheritance prevent it from being counted as income or asset by SSI and Medicaid?

I'm executor of my father's estate. The funds will be divided among 6 siblings, about $6000 each. One brother is on SSI, SSDI, and Medicaid, in Vermont. If he inherits $6000, he is in danger of losing his Medicaid until he spends $4000. Losing his Medicaid could cost him a lot more than... Read more »

Sally Bergman
Sally Bergman answered on Sep 14, 2020

This is a question that needs to be answered by an attorney licensed in Vermont and familiar with its Medicaid rules and regulations as every state is different. There are likely ways he can spend that amount of money down without interrupting his SSI/MEDICAID benefits and/or can create an ABLE... Read more »

1 Answer | Asked in Estate Planning for California on
Q: My parents both passed away within 1 week of each other. There is a will saying I inherit everything.

My parents both passed away within 1 week of each other. There is a will saying I inherit everything. They own outright a trailer and a truck and have a bank account (less than $20k worth). No real estate or other assets and no outstanding credit. Do I need to file a small estate affidavit if I... Read more »

Sally Bergman
Sally Bergman answered on Aug 21, 2020

My condolences for your very tragic losses. If your parents died in 2020, the small estate limit is $166,250 so if the total of their assets is less than that, a small estate affidavit should be all that you need. You will need certified copies of the death certificates and you must wait at least... Read more »

1 Answer | Asked in Estate Planning for California on
Q: I am an heir with a reverse mortage. Can I legally still live in the house while trying to sell it?

There is a trust and everything gets divided equally between me and 2 brothers, one of whom does not live in the house. The reverse mortgage company knows we have it listed & are trying to sell it. But we were told we couldn't stay there by some people and then others said because of... Read more »

Sally Bergman
Sally Bergman answered on Aug 21, 2020

Whether or not you can live in the house will depend upon a number of factors. If there's a trust that leaves the proceeds of the house solely to you and you are the sole trustee, then likely it's OK. It becomes more complicated if there are other heirs not living in the house. In that... Read more »

1 Answer | Asked in Elder Law and Banking for California on
Q: My mom died in 2018 and my dad been having problems ever since well let me start some lady put a name change on his home

And his money market fund this lady I think she work for well Fargo bank the same bank my dad has

Sally Bergman
Sally Bergman answered on Mar 2, 2020

If you suspect this woman is unduly influencing your father and/or is taking advantage of him financially, you should immediately contact Adult Protective Services. More information here: https://www.cityofmontclair.org/city-government/police-department/victim-information/elder-abuse

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 »

Sally Bergman
Sally Bergman answered on Sep 9, 2019

If the property was solely in your grandfather's name, then the only way it can pass to anyone is through a probate action. If you are in possession of your grandfather's original will, it is your responsibility to "lodge" it with the Santa Clara County Clerk within 30 days. I... Read more »

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2 Answers | Asked in Estate Planning for California on
Q: what is ment by a "Bixby Trust"?
Sally Bergman
Sally Bergman answered on Jul 20, 2019

I've never heard of a "Bixby Trust" although there is a 1949 California Supreme Court case regarding spendthrift trusts in which the plaintiff's name was Bixby. See it here: https://caselaw.findlaw.com/ca-supreme-court/1796531.html

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2 Answers | Asked in Estate Planning for California on
Q: Can anyone advise me where I may be able to find a living trust,I was told it was lost,never had a chance to view it .

To Whom it may concern, thank you in advance for responding to this message,I need to honestly know,if there is any way,I can track down a living trust, my Dad passed away and because at the time, I was in the US military special ops unit,I was unaware of his passing, once the mission was... Read more »

Sally Bergman
Sally Bergman answered on May 24, 2019

Thank you for your service. Also, my condolences for the loss of your father, as well as for the timing and manner that you learned of the news he had died. If your father had a trust and left no spouse, you should have received a notice and a copy of the trust from the person designated in the... Read more »

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1 Answer | Asked in Family Law, Civil Litigation, Elder Law and Probate for California on
Q: Is an attorney ethically obligated to report suspected financial abuse of a disabled adult beneficiary by the trustee?

both disabled adult and trustee are sibling beneficiaries of an irrevocable family trust in California.

Sally Bergman
Sally Bergman answered on May 2, 2019

Attorneys are not mandated reporters of suspected financial elder abuse. As well, our ethics rules do not follow the American Bar Association ethics rules all other states follow that allow for more attorney action. Our rules on this subject can be found here:... Read more »

2 Answers | Asked in Estate Planning, Real Estate Law, Tax Law and Elder Law for California on
Q: How do I best give (or sell for a nominal amount) my house to one of my daughters?

I'm 83 and she is my caretaker and we live together. She has put her life on hold to care for me and I want her to own the house before I die. I have an old living trust that is no longer relevant. I believe the trust splits the property equally between my five children. What type of... Read more »

Sally Bergman
Sally Bergman answered on Mar 19, 2019

I recommend you talk with an Elder Law Attorney as you raise many important issues very specific to elder law.

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1 Answer | Asked in Estate Planning for California on
Q: May a property which passes by intestate succession pass to the deceased spouse's trust, trustee?

Decedent died intestate in 2010 holding real property, survived by Spouse who died in 2018. Spouse had established a revocable trust and named a successor trustee. May the trust/ successor trustee may now take title to the decedent's share of the real property?

Sally Bergman
Sally Bergman answered on Mar 19, 2019

If the spouse had retitled the property into the name of the spouse's revocable trust, the answer is a clear yes. If the spouse had not done so, it may still be possible to transfer the property into the trust, but you will need to file a court petition to accomplish that transfer. This... Read more »

2 Answers | Asked in Estate Planning for California on
Q: irrevocable trust in place and mom died last month. What docs need filed relating to cost step up basis?

Both brother and I are trustees and beneficiaries of mom's irrevocable trust. What Federal/State documents need filed so my brother and I inherit property without higher taxes?

Sally Bergman
Sally Bergman answered on Mar 11, 2019

You need a qualified trust and estates attorney to review the trust documents as irrevocable trusts can be very complex. In addition, it may be that this is an old "AB" trust that prevents step up in basis, but may possibly be amended to get rid of the AB trust provisions and thus get a... Read more »

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