Questions Answered by Sally Bergman
Q: what is ment by a "Bixby Trust"?
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
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 »
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 »
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.
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 »
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 attorney... Read more »
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?
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?
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... Read more »
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?
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... Read more »
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
Can this girl that now is stating that my brother is her father can she come in and take everything cars, accounts, 401k,etc. My brother's name is not on her birth certificate either
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... Read more »
Q: Transfer on Death Deed- if the creation of this law was meant to easily transfer property to beneficiaries
title companies are refusing to accept TOD as a valid means of transferring title after a death. the law was meant to make the transfer easy and the courts accept it but title company won't insure clear title because of the ease in which it is done. makes no sense. if the courts accept it as a... Read more »
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... Read more »
Q: Lost Trust Paperwork
My father passed away, he had many years ago gone to an attorney to have a trust done. We can not locate a signed copy, but have the drafts from his attorney (whos not been of any help). I would like to sell his house, what can I do, will this unsigned draft help me in any way?
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... Read more »
Q: YouI want to know how to proceed with if there is an option regarding a living trust
Located in California. My mother passed May 17 2018, I received a copy of her amended trust from a third party other than the successor trustee in June 11, 2018. Only one heir was named as beneficiary to real and personal property, otgers including myself was given $1000, which has not been... Read more »
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... Read more »
Q: Do you have to have a lawyer do a durable power of attorney in California
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... Read more »
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.
My sister passed intestate in 2015, S.C. County CA. Probate lawyer was hired in early 2016. My brother passed in late 2016. My sister was never married and had no children. Is my adult nephew (brother's son) eligible for 50% of the estate? Sadly we've been a little disappointed with our current... Read more »
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... Read more »
Q: If a suicide note states that everything is to be given to a specified non-relative, can it be contested?
Recently a friend of my husband and I attempted suicide and is currently in the hospital in the ICU in California. He left suicide notes with his instructions on where he wants his stuff to go. He specifically and verbally declared he doesn't want his parents to get anything. He has been estranged... Read more »
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... Read more »
Q: Can POA be legally signed after a stroke affected half brain & paralyzed left hand for my son Great G-Mom to sign?
My son had power of attorney over his biological grandmother Medical/ financial/estate since around 2012. She recently had a stroke which left her paralyzed on her left side Dr.s told us that only 1 side of her brain was working. Her Grandson has been in prison for about 20years & has life in... Read more »
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
If I performed a search would I be able to locate the document in my own, without contacting the trustee or attorney that drafted the trust?? And if so, where would I begin my search??
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... Read more »
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?
Can I rescind the sell of a property? My mom is cognitively impaired. My brother had her sign a P.O. Attorney. He sold my mom's home with that invalid POA. The broker was aware of the POA, knew that the property was going conservativeship and secretly sold her home. The buyer was not a bona fide... Read more »
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?
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... Read more »
Q: Can I force my older mother (with dementia) to choose someone for power of attorney?
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... Read more »
Q: If an Attorney amends a Living Trust, specifically says in the paperwork we are changing Article F in its entirety and
In the paperwork changes E. Is that just a misprint or can it be a problem?
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... Read more »
Q: Can I transfer my assets to my children so that I may qualify for medi-cal?
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... Read more »
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