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Questions Answered by Sally Bergman
1 Answer | Asked in Estate Planning for California on
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?

Sally Bergman
Sally Bergman answered on Jan 10, 2019

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... Read more »

1 Answer | Asked in Probate for California on
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 »

Sally Bergman
Sally Bergman answered on Jan 9, 2019

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 »

1 Answer | Asked in Estate Planning for California on
Q: Do you have to have a lawyer do a durable power of attorney in California
Sally Bergman
Sally Bergman answered on Jan 9, 2019

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 »

2 Answers | Asked in Estate Planning, Family Law and Probate for California on
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... Read more »

Sally Bergman
Sally Bergman answered on Jan 8, 2019

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... Read more »

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3 Answers | Asked in Estate Planning, Family Law, Civil Litigation and Civil Rights for California on
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... Read more »

Sally Bergman
Sally Bergman answered on Jan 3, 2019

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... Read more »

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2 Answers | Asked in Estate Planning, Elder Law and Probate for California on
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 »

Sally Bergman
Sally Bergman answered on Dec 27, 2018

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.

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1 Answer | Asked in Estate Planning for California on
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??

Sally Bergman
Sally Bergman answered on Dec 23, 2018

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 »

1 Answer | Asked in Elder Law and Probate for California on
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... Read more »

Sally Bergman
Sally Bergman answered on Dec 6, 2018

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.

1 Answer | Asked in Estate Planning for California on
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
Sally Bergman answered on Nov 30, 2018

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... Read more »

1 Answer | Asked in Elder Law for California on
Q: Can I force my older mother (with dementia) to choose someone for power of attorney?
Sally Bergman
Sally Bergman answered on Nov 21, 2018

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... Read more »

1 Answer | Asked in Estate Planning for California on
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?

Sally Bergman
Sally Bergman answered on Nov 6, 2018

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 »

1 Answer | Asked in Estate Planning for California on
Q: Can I transfer my assets to my children so that I may qualify for medi-cal?
Sally Bergman
Sally Bergman answered on Nov 5, 2018

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... Read more »

1 Answer | Asked in Elder Law for California on
Q: My mom has alzheimers and changed her will without telling anyone. What should I do?
Sally Bergman
Sally Bergman answered on Nov 2, 2018

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... Read more »

1 Answer | Asked in Elder Law for California on
Q: My wife has dementia, I have a POA. Can I sell our home to pay for her assisted living
Sally Bergman
Sally Bergman answered on Oct 29, 2018

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... Read more »

1 Answer | Asked in Elder Law for California on
Q: In what types of situations would setting up a special needs trust benefit someone recently diagnosed with Alzheimer's?
Sally Bergman
Sally Bergman answered on Oct 20, 2018

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.... Read more »

2 Answers | Asked in Estate Planning for California on
Q: When is a trust preferable over a will?
Sally Bergman
Sally Bergman answered on Oct 13, 2018

Rarely is a standalone will better than a trust (which would include something called a pour over will), unless you have very few assets. All too often, I believe potential clients think they are saving money on attorney fees by asking for a will as they think a living trust will cost more. This... Read more »

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1 Answer | Asked in Estate Planning for California on
Q: What does it mean when a beneficiary has a Life Estate in a revocable trust?

In california

Sally Bergman
Sally Bergman answered on Sep 26, 2018

Life estates are typically used in real property matters. For example, the person creating the trust may wish that when he/she dies that their home be given to Person 2 who may live in the home for the rest of their life. When Person 2 dies, the property transfers to Person 3. The trust document... Read more »

1 Answer | Asked in Elder Law for California on
Q: BONA FIDE PURCHASER SCAM: If 5 people got together and expedited this scam, what is the legal term that describes it?

Person No. 1 has a 94 year old cognitively impaired mother sign a Power of Attorney designating Person No. 1 as Attorney in Fact. Person No. 1 sells the 94 year old's home well below market value to Person No. 2. Person No. 2 quickly gifts the property to Person No. 3. Person No. 3 sells the... Read more »

Sally Bergman
Sally Bergman answered on Sep 26, 2018

There's no question that you need to immediately contact an elder law attorney who handles financial elder abuse matters. I can't imagine that a title company ever insured title on all of these transactions.

1 Answer | Asked in Estate Planning for California on
Q: Iam a Trustee on Dads will & Trust. He recently passed 1 month ago. I have 4 siblings. If there are no instructions how

To divide the monies from CD, checking,Savings & maximizer acct how much if any do they get. All i remember my father saying is if anyone objected to the amount & werent happy then automatically they forfeit their share. I know my Mom doesnt get nothing except to live free in the home &... Read more »

Sally Bergman
Sally Bergman answered on Sep 23, 2018

These are all questions that should be answered by the terms of the trust. If you have any doubt, you need to have an attorney look at the trust document and evaluate what needs to be done.

1 Answer | Asked in Elder Law for California on
Q: Do nursing homes have to be licensed to operate in California?
Sally Bergman
Sally Bergman answered on Sep 22, 2018

Nursing homes are highly regulated in California. There are several different types of licenses, depending upon the type of facility it is. For example, skilled nursing facility, assisted living, board and care, etc. You can find a lot of very useful information and resources at California... Read more »

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