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Questions Answered by Sally Bergman
1 Answer | Asked in Estate Planning for California on
Q: brother was not named a successor trustee but petitioned and won. The trust required him to have our vote but went asked

My brother recently was nominated by the court as successor trustee after he filed a petition. The trust instructs that if the nominated trustee is deceased or unwilling a successor trustee will be nominated after receiving majority of the beneficiaries vote however the beneficiaries were not... Read more »

Sally Bergman
Sally Bergman answered on Jun 13, 2021

You need to have an attorney look at both the trust document and the petition your brother filed. You seem to raise valid objections to your brother's appointment as successor trustee. If you were properly served with your brother's petition, you would have had to file an objection to... Read more »

3 Answers | Asked in Criminal Law, Estate Planning, Family Law, Elder Law and Probate for California on
Q: File a petition to remove Power of Attorney in California

What forms do I file a petition with the Probate Department to remove a power of attorney based on financial elder abuse? I have already contacted APS and local police, they are telling me to request the courts for the POA to hand over financial records so the POA can be removed due to the abuse.... Read more »

Sally Bergman
Sally Bergman answered on May 30, 2021

Unfortunately, this situation will likely require a conservatorship, which is a court-monitored process that can and will revoke the Power of Attorney. If the older adult had a trust in place, it's possible that a conservatorship would not be necessary. Either way, please consult an elder... Read more »

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4 Answers | Asked in Estate Planning for California on
Q: I have a Trust and Living Will with an Amendment. I want to revert to the original. Can I simply tear up the Amendment?

The Amendment was done about 7 years after the original Trust by a different lawyer. It was a change to my beneficiaries. Now I want to reverse that. Do I need to see a lawyer or can I simply tear up the Amendment so that the original stands as is?

Sally Bergman
Sally Bergman answered on Mar 7, 2021

I agree with my colleague that you should do what is called a restatement of your original trust, particularly when there have been major changes in beneficiaries between the original and the amendment. Those beneficiaries in the amendment could otherwise try to make claims that the Amendment was... Read more »

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1 Answer | Asked in Elder Law for California on
Q: How do you revoke power of attorney from someone who has abused their power?

If you have an elderly family member who gave his child power of attorney to assist them with their financial affairs and you discover the person who has power of attorney has stolen the elderly family members money. The thief also drew up a will a few years prior. Now that its discovered the... Read more »

Sally Bergman
Sally Bergman answered on Mar 3, 2021

You should contact an elder law attorney to immediately prepare and serve a revocation of the power of attorney. That attorney will also explore a possible financial elder abuse claim. I would not suggest you try to do the new power of attorney yourself as it's not likely the financial... Read more »

2 Answers | Asked in Estate Planning for California on
Q: How does Step-up in basis rule apply for AB Trust if wife sells the house after husband dies?

Husband died in 11/2020. Couple had a Rev Living Trust (AB Trust). I understand all estates will get a Step-up in basis as of spouse's death date.

If wife sells the house in 2021, can she get the Step-Up in basis rule for the entire house?

Someone was saying only the 50% (B... Read more »

Sally Bergman
Sally Bergman answered on Feb 14, 2021

Any part of the house funded into the B Trust will not get a step-up in basis. Depending upon many circumstances, many people are deciding they do not want a bypass trust, and often times, it is not necessary. You should speak to a trust administration attorney for more advice as it may be... Read more »

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1 Answer | Asked in Estate Planning and Elder Law for California on
Q: I'll try again. Small, I mean small estate. No family, friends to help me out. I'm alone. I need assistance for closing.

Will a ProBono Attorney, close my Estate after I pass. My total assets are under $14,000.00 year.

Sally Bergman
Sally Bergman answered on Feb 12, 2021

You need to take at least some minimum steps to make sure no estate administration is required. For every bank account, make sure you have designated a pay-on-death beneficiary and make sure that person knows they are the beneficiary. Following your death, that person can bring in a copy of your... Read more »

1 Answer | Asked in Estate Planning for California on
Q: I have a very small estate to close and no one to help or guide me.
Sally Bergman
Sally Bergman answered on Feb 12, 2021

If the estate is less than $166,250, you can submit a Small Estate Affidavit. This is the form: https://www.courts.ca.gov/documents/Affidavit_personal_property.pdf

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

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