Questions Answered by Sally Bergman
Q: How do I best give (or sell for a nominal amount) my house to one of my daughters?
2 Answers
| Asked
in
Estate Planning, Real Estate Law, Tax Law and Elder Law
for
California
on
Answered on Mar 19, 2019
Answered on Mar 19, 2019
Sally Bergman's answer
I recommend you talk with an Elder Law Attorney as you raise many important issues very specific to elder law.
I recommend you talk with an Elder Law Attorney as you raise many important issues very specific to elder law.
Q: May a property which passes by intestate succession pass to the deceased spouse's trust, trustee?
Sally Bergman's answer
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 would not be a do-it-yourself kind of project, but most attorneys who practice in this area of law are quite familiar with these petitions.
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 would not be a do-it-yourself kind of project, but most attorneys who practice in this area of law are quite familiar with these petitions.
Q: irrevocable trust in place and mom died last month. What docs need filed relating to cost step up basis?
Sally Bergman's answer
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 step up in basis. It's important that an attorney look at everything before you start trying to distribute any of the assets.
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 step up in basis. It's important that an attorney look at everything before you start trying to distribute any of the assets.
Q: My brother just died & I'm his only family his never been married & no kids we thought . He has no will.ill continue Q
3 Answers
| Asked
in
Estate Planning, Foreclosure and Probate
for
California
on
Answered on Feb 7, 2019
Answered on Feb 7, 2019
Sally Bergman's answer
To add to what my colleagues have stated, if she were legally adopted by another person or couple, that adoption would have severed her rights to inherit from her biological parent(s). In addition, rules surrounding 401K's follow their own set of rules. If there was a designated beneficiary on those accounts, those designations take priority over other heirs. You should contact a probate attorney and go over details to determine exactly what your rights may be.
To add to what my colleagues have stated, if she were legally adopted by another person or couple, that adoption would have severed her rights to inherit from her biological parent(s). In addition, rules surrounding 401K's follow their own set of rules. If there was a designated beneficiary on those accounts, those designations take priority over other heirs. You should contact a probate attorney and go over details to determine exactly what your rights may be.
Q: Transfer on Death Deed- if the creation of this law was meant to easily transfer property to beneficiaries
Sally Bergman's answer
This is one of the reasons why estate planning attorneys do not recommend the use of transfer on death deeds. Title companies are hesitant to insure title during the three-year period in which claims can be made against the beneficiary of the deed. While the beneficiary can take title under the deed, they will have difficulty selling it for three years and can be subject to claims from other heirs.
This is one of the reasons why estate planning attorneys do not recommend the use of transfer on death deeds. Title companies are hesitant to insure title during the three-year period in which claims can be made against the beneficiary of the deed. While the beneficiary can take title under the deed, they will have difficulty selling it for three years and can be subject to claims from other heirs.
Q: Lost Trust Paperwork
Sally Bergman's answer
I don't believe there's any way you can avoid having to retain a lawyer to assist you with this matter, particularly if there are family members or other beneficiaries who may dispute the existence or terms of the trust. If the home was titled in the name of the trust, that's a good start, but there are many other issues and hurdles that will have to be dealt with before you can sell the home. There's always the possibility that probate might be required, but an attorney would explore all...
I don't believe there's any way you can avoid having to retain a lawyer to assist you with this matter, particularly if there are family members or other beneficiaries who may dispute the existence or terms of the trust. If the home was titled in the name of the trust, that's a good start, but there are many other issues and hurdles that will have to be dealt with before you can sell the home. There's always the possibility that probate might be required, but an attorney would explore all...
Q: YouI want to know how to proceed with if there is an option regarding a living trust
Sally Bergman's answer
If the trust document was notarized, no witness signatures are required in California. Also, when you received a copy of the trust last year, you should have received a notice under Probate Code 16061.7 that should have warned you that if you wanted to contest the trust, that you had to do so within a certain number of days, the longest of which would be 120 days. That deadline has long passed.
If the trust document was notarized, no witness signatures are required in California. Also, when you received a copy of the trust last year, you should have received a notice under Probate Code 16061.7 that should have warned you that if you wanted to contest the trust, that you had to do so within a certain number of days, the longest of which would be 120 days. That deadline has long passed.
Q: Do you have to have a lawyer do a durable power of attorney in California
Sally Bergman's answer
While you do not need an attorney to do a durable power of attorney in California there are circumstances in which consultation with an attorney is advisable. For example, if the person is in the early stages of any type of dementia or if they may need to qualify for long-term Medi-Cal benefits in the future, an elder law attorney would craft a power of attorney very specific to those situations that are rarely seen in any standard document, but which can be very critical.
While you do not need an attorney to do a durable power of attorney in California there are circumstances in which consultation with an attorney is advisable. For example, if the person is in the early stages of any type of dementia or if they may need to qualify for long-term Medi-Cal benefits in the future, an elder law attorney would craft a power of attorney very specific to those situations that are rarely seen in any standard document, but which can be very critical.
Q: I'd like to ask a likely complicated, unusual question about a pending probate of my late sister's estate. I'm the adm.
2 Answers
| Asked
in
Estate Planning, Family Law and Probate
for
California
on
Answered on Jan 8, 2019
Answered on Jan 8, 2019
Sally Bergman's answer
Unfortunately, probate matters, particularly in some busy counties, can take what seems like a very long time to complete. Assuming you and your brother were your deceased's only siblings at the time of your sister's death, and there were no other predeceased siblings, then your later deceased's brother's 50% share would pass to his child/children.
Unfortunately, probate matters, particularly in some busy counties, can take what seems like a very long time to complete. Assuming you and your brother were your deceased's only siblings at the time of your sister's death, and there were no other predeceased siblings, then your later deceased's brother's 50% share would pass to his child/children.
Q: If a suicide note states that everything is to be given to a specified non-relative, can it be contested?
3 Answers
| Asked
in
Estate Planning, Family Law, Civil Litigation and Civil Rights
for
California
on
Answered on Jan 3, 2019
Answered on Jan 3, 2019
Sally Bergman's answer
I agree with Ms. Dunn, although I would add that I don't believe the parents, unless they first secured a conservatorship over their adult son, would have any right to enter his property. These can be very difficult situations when estranged family members appear only at death to not only claim the assets, but to also claim the right to control the disposition of the body. If your friend had no spouse or children, and no legal document in place giving someone else the right to control that...
I agree with Ms. Dunn, although I would add that I don't believe the parents, unless they first secured a conservatorship over their adult son, would have any right to enter his property. These can be very difficult situations when estranged family members appear only at death to not only claim the assets, but to also claim the right to control the disposition of the body. If your friend had no spouse or children, and no legal document in place giving someone else the right to control that...
Q: Can POA be legally signed after a stroke affected half brain & paralyzed left hand for my son Great G-Mom to sign?
2 Answers
| Asked
in
Estate Planning, Elder Law and Probate
for
California
on
Answered on Dec 27, 2018
Answered on Dec 27, 2018
Sally Bergman's answer
If the second POA was executed while the grandmother lacked mental capacity, it would not be valid and would not have invalidated the earlier POA. There's no question that your son needs to talk to an elder law attorney as soon as possible.
If the second POA was executed while the grandmother lacked mental capacity, it would not be valid and would not have invalidated the earlier POA. There's no question that your son needs to talk to an elder law attorney as soon as possible.
Q: Are all trusts filed in the courthouse? Is there somewhere I can locate the document on my own, without the trustee/at
Sally Bergman's answer
Trusts are not filed in the courthouse as they are intended to be confidential. If you are a beneficiary of a trust, you are entitled to a copy only after it has become irrevocable, which is typically when the person(s) who created the trust die. No attorney would ever give it to you unless his or her client specifically authorized them to do so.
Trusts are not filed in the courthouse as they are intended to be confidential. If you are a beneficiary of a trust, you are entitled to a copy only after it has become irrevocable, which is typically when the person(s) who created the trust die. No attorney would ever give it to you unless his or her client specifically authorized them to do so.
Q: Can the sell of a property be rescinded if an ivalid P O A was used and the buyer is not a bona fide purchaser?
Sally Bergman's answer
Very likely yes, you can rescind, but it will not necessarily be an easy or inexpensive process if your brother, broker and the purchaser do not agree with you. For certain, you need to retain the services of a trust and estates litigation attorney and the sooner you do that, the better.
Very likely yes, you can rescind, but it will not necessarily be an easy or inexpensive process if your brother, broker and the purchaser do not agree with you. For certain, you need to retain the services of a trust and estates litigation attorney and the sooner you do that, the better.
Q: I don't agree with the terms of my father's will. What can I do to change them before he passes?
Sally Bergman's answer
No one but your father can change the terms of his will and I would caution you that under some circumstances, exercising undue influence on your father to change his will could be construed as elder abuse. Better to simply talk to your Dad about what part of the will you don't like as it's always possible there's some misunderstanding that can be worked out.
No one but your father can change the terms of his will and I would caution you that under some circumstances, exercising undue influence on your father to change his will could be construed as elder abuse. Better to simply talk to your Dad about what part of the will you don't like as it's always possible there's some misunderstanding that can be worked out.
Q: Can I force my older mother (with dementia) to choose someone for power of attorney?
Sally Bergman's answer
You can never "force" anyone to choose a particular individual for a power of Attorney. The person who is choosing an agent for a power of attorney must freely, and while mentally capable, choose an individual they have complete faith and trust in to act in their best interests. This also means that if your mother's dementia has progressed to the stage where she no longer has mental capacity, she cannot create a power of attorney or any other legal document. In that event, unfortunately, a...
You can never "force" anyone to choose a particular individual for a power of Attorney. The person who is choosing an agent for a power of attorney must freely, and while mentally capable, choose an individual they have complete faith and trust in to act in their best interests. This also means that if your mother's dementia has progressed to the stage where she no longer has mental capacity, she cannot create a power of attorney or any other legal document. In that event, unfortunately, a...
Q: If an Attorney amends a Living Trust, specifically says in the paperwork we are changing Article F in its entirety and
Sally Bergman's answer
While I would want to review both the original document and the amendment before making a final decision, it sounds as though it is very apparent that the trustmaker(s) intended to amend only Article F, so that it would not be considered to be a significant error. The attorney who prepared the amendment, however, should correct this at no charge.
While I would want to review both the original document and the amendment before making a final decision, it sounds as though it is very apparent that the trustmaker(s) intended to amend only Article F, so that it would not be considered to be a significant error. The attorney who prepared the amendment, however, should correct this at no charge.
Q: Can I transfer my assets to my children so that I may qualify for medi-cal?
Sally Bergman's answer
It depends on the nature and type of your assets and the type of Medi-Cal benefits you are are seeking.. Also, there's a right way to do it and many wrong ways to do it. I highly recommend your contact an elder law attorney to assist you. They typically save families far more money than it costs to hire them.
It depends on the nature and type of your assets and the type of Medi-Cal benefits you are are seeking.. Also, there's a right way to do it and many wrong ways to do it. I highly recommend your contact an elder law attorney to assist you. They typically save families far more money than it costs to hire them.
Q: My mom has alzheimers and changed her will without telling anyone. What should I do?
Sally Bergman's answer
You should immediately consult an elder law attorney so that a formal determination regarding your mother's mental capacity can be determined. It is important that this be one as close in time as possible to the time when she changed the will. A diagnosis of Alzheimer's Dementia does not necessarily mean your mother does not have mental capacity as many continue to be very capable for many years.
You should immediately consult an elder law attorney so that a formal determination regarding your mother's mental capacity can be determined. It is important that this be one as close in time as possible to the time when she changed the will. A diagnosis of Alzheimer's Dementia does not necessarily mean your mother does not have mental capacity as many continue to be very capable for many years.
Q: My wife has dementia, I have a POA. Can I sell our home to pay for her assisted living
Sally Bergman's answer
A power of attorney properly executed by your wife at a time when she still had mental capacity should be sufficient to allow you to sell your home, although I would recommend you have it reviewed by an attorney before you get too far into a sale, only to find a title company unwilling to accept it. As well, you may want to consider consulting with an elder law attorney to evaluate other possible options other than selling your home. There are many different factors to consider.
A power of attorney properly executed by your wife at a time when she still had mental capacity should be sufficient to allow you to sell your home, although I would recommend you have it reviewed by an attorney before you get too far into a sale, only to find a title company unwilling to accept it. As well, you may want to consider consulting with an elder law attorney to evaluate other possible options other than selling your home. There are many different factors to consider.
Q: In what types of situations would setting up a special needs trust benefit someone recently diagnosed with Alzheimer's?
Sally Bergman's answer
The (well) spouse of a person with Alzheimer's (ill spouse) should establish a testamentary special needs trust through his/her will to protect the ill spouse in the event the well spouse dies before the ill spouse. These types of trusts between spouses can only be established through a will. Any other type of special needs trust cannot be established once the ill spouse reaches age 65.
I do encourage families who have received this diagnosis to sit down with an elder law attorney...
The (well) spouse of a person with Alzheimer's (ill spouse) should establish a testamentary special needs trust through his/her will to protect the ill spouse in the event the well spouse dies before the ill spouse. These types of trusts between spouses can only be established through a will. Any other type of special needs trust cannot be established once the ill spouse reaches age 65.
I do encourage families who have received this diagnosis to sit down with an elder law attorney...
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