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Questions Answered by Bruce Adrian Last
4 Answers | Asked in Probate for California on
Q: My mom died and resided in California. She has an account in Ohio I need to close. Total assets 25,000. Probate?

California does not require probate but Ohio does. I'm in California and not sure how to proceed to close her account.

Bruce Adrian Last
Bruce Adrian Last answered on Jul 15, 2019

As others suggest, personal property (that is anything other then real property) is subject to the laws of the State where the decedent died. Thus, the Ohio bank should honer an affidavit under California Probate Code s. 13100.... Read more »

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1 Answer | Asked in Estate Planning and Probate for California on
Q: I have a question about making changes to Will

I made my will a little while back know I want to make changes to the well ie Distributions Or just start over with a New wheel?

Bruce Adrian Last
Bruce Adrian Last answered on Dec 13, 2018

Glendale:

To codicil or not to codicil, that is the question.

In order to make changes to a will, you have two options. You can make a new will revoking the old will, or you can write an amendment, called a codicil, to change only the portions you wish. Creating a new will, and...
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1 Answer | Asked in Tax Law and Estate Planning for California on
Q: Is it legal to ask a beneficiary to claim money from distributions he never received, for taxes, through Schedule K-1s?

The fiduciary and his accountant both said it is “standard practice” even though I never received any distributions from the trust, he wants me to amend my taxes for 3 years back and say I did get money and then pay the taxes from my pocket. There is no information that I will receive the money... Read more »

Bruce Adrian Last
Bruce Adrian Last answered on Dec 13, 2018

Quail Valley:

From what you describe, something does not sound right. In some instances a trust or estate will "pass though" tax liability to the beneficiary but only where that liability is connected to a distribution. For example, if a trust makes a distribution to a beneficiary that...
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1 Answer | Asked in Civil Litigation, Contracts, Elder Law and Probate for California on
Q: How can I rescind the sell of a property?

How can I rescind the sell of a property? My is cognitively impaired. My brother had her sign a power of attorney. He sold my mom's home that invalid POA. The broker was fully aware of the POA . It has been proven that the broker had full knowledge that my mom's property was going... Read more »

Bruce Adrian Last
Bruce Adrian Last answered on Dec 6, 2018

Dear Los Angeles:

If what you say is true, that your Brother had you Mother sign a Power of Attorney knowing that your Mother lacked capacity, then this is a serious matter indeed. Particularly if there is an "inside" deal involved. The issues is that your Mother, as the property owner,...
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4 Answers | Asked in Probate for California on
Q: My late husband had a parcel of land in El Dorado County that we never bothered to put my name on. Must I probate it?
Bruce Adrian Last
Bruce Adrian Last answered on Nov 26, 2018

Fremont:

To expand a bit on Ms. Dunn's comments.

If the real property is worth less than $50,000, there is a affidavit procedure to transfer it to the appropriate heirs. This is the gross (before any liens or mortgages) value, and includes all his real property subject to probate....
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1 Answer | Asked in Probate for California on
Q: Could you tell me the difference between a "Family Trust and the educational sub-trusts".

This language is repeatedly used and I want to understand the differences.

Bruce Adrian Last
Bruce Adrian Last answered on Nov 16, 2018

Plymouth, MI:

"What's in a name?" as they say.

Actually, it would be impossible to tell just from the name used, because Trusts generally define the terms like "educational sub-trust" or "Family Trust" in the trust document itself. (At least well drafted trusts do.)

For...
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1 Answer | Asked in Probate for California on
Q: A mobile home on ten acres is inherited by 4 people. I currently lives in the property and am one of the 4.

I have suddenly been presented with a lease which the other 3 say I must sign, and the property is in probate. I haven’t even seen any documentation which says they are now part owners. Is this legal, and How do I get them to provide documentation?

Bruce Adrian Last
Bruce Adrian Last answered on Nov 9, 2018

Dear Temecula:

First, if you are one of the four owners (read on below about that), you would be a tenant in common. While the others can ask that you sign a lease, they cannot require it as each tenant in common has a right to occupy the property. But, be careful, without a lease or rental...
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2 Answers | Asked in Estate Planning and Probate for California on
Q: Hello, I was named as an executor of a will for a friend in Ca. How much should I get paid for my services?

My friend passed away and named me along with her brother as co-executors of her trust. She named her brother as 100% beneficiary (unless he was deceased which then the estate named me as half beneficiary). He passed during the process of liquidating everything in her estate. He named his... Read more »

Bruce Adrian Last
Bruce Adrian Last answered on Nov 9, 2018

San Francisco:

I am a little confused because you are mixing up the terminology. The person who manages a probate estate is called an administrator or an executor, depending if there was a will involved or not. However, the person who manages a Trust is called a Trustee.

While and...
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1 Answer | Asked in Probate for California on
Q: What happens if no comply after giving a affidavit of property no probate no will
Bruce Adrian Last
Bruce Adrian Last answered on Nov 7, 2018

Dear Walnut Creek:

I am having trouble deciphering your question. I think you are asking "What happens if the holder of a Decedent's property refuses to turn the property over after being presented with an Affidavit under Probate Code section 13100?"

Assuming that all the...
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1 Answer | Asked in Probate for California on
Q: I am filling out DE161 attachment 2. How do I list 76 EE savings bonds bought between 1991 and 2000. They mature at

different times. Can I photo copy the list and include with the attachment 2? Also should I include computers and devices with the personal effects or list separately?

Bruce Adrian Last
Bruce Adrian Last answered on Nov 1, 2018

Laguna Woods:

This forum is for general probate questions, not for answers about specific procedures.

That being said, I would ask your court appointed probate referee how they prefer the assets, like bonds, listed. Items like bonds and tangible personal property must be appraised...
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1 Answer | Asked in Probate for California on
Q: I am the Administrator of an Estate with 2 beneficiaries, one of which lived with descendent at her house.

Both beneficiaries agreed in probate court to sell the property and I received the full authority to sell and split property proceeds. The one beneficiary living at the property was the mother's caregiver and helped herself to the mother's bank account writing checks and using credit card without... Read more »

Bruce Adrian Last
Bruce Adrian Last answered on Oct 30, 2018

Dear Sacramento:

Based on the facts submitted, this is best handled by with the assistance of an attorney. A Probate Court has broad equitable powers to make adjustments. However, the claims must be presented in the correct format and using the proper procedures. A discuss of which is...
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2 Answers | Asked in Estate Planning and Probate for California on
Q: If son of mom who died intestate dies 2 yrs after, before any distributions, do his kids or wife get his inheritance?

This is in Nevada County, California. Children of son are all adults. Son died while his deceased (widowed) mother's intestate probate case was still open and before any distributions were made. Son was actually administrator of mom's estate at time of his death, in which his sibling then became... Read more »

Bruce Adrian Last
Bruce Adrian Last answered on Oct 30, 2018

Dear Castro Valley:

Mr. Sweeney's resource is quite good.

As a general rule, where the beneficiary (the son) of an intestate estate dies during administration their share of the estate goes to the beneficiary's intestate heirs, or if they had a will as designated in the will. (If...
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1 Answer | Asked in Probate for California on
Q: Can an "institutional trustee" require a beneficiary to sign a release to hold them harmless of any claims

partial distribution check arrived with receipt and release form to sign releasing the trustee from any claims and liabilities in administration of trust Is that legal? CALIF

Bruce Adrian Last
Bruce Adrian Last answered on Oct 29, 2018

Dear San Jose:

A trustee cannot make a distribution contingent on your signing a release. However, they may ask for one and many institutional trustees and private fiduciaries do so a part of normal business practice.

A receipt is a different matter and are routinely requested for...
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1 Answer | Asked in Real Estate Law and Probate for California on
Q: Hello, As special administrator can I sell estate privately or is a broker needed and property need listing
Bruce Adrian Last
Bruce Adrian Last answered on Oct 23, 2018

San Diego:

I am taking this question to ask if you are required to market and list the property thought the MLS (or other listing service) with a broker, or can you do a sale that is privately negotiated with the buyer without an agent or broker.

There is no requirement that you use...
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1 Answer | Asked in Probate for California on
Q: Can a notarized postnuptial agreement hold in probate when agreement broken prior to death?

Spouse passed away, house will go into probate, no will. Surviving spouse not on title, but notarized post nuptial agreement states house is hers if post nup agreement is not withheld while spouse was still alive. Would the notorized post nuptial be considered a gift and the house not be included... Read more »

Bruce Adrian Last
Bruce Adrian Last answered on Oct 15, 2018

Dear Los Angeles:

Interesting factual set up. I'd have the post-nuptual agreement reviewed by a probate attorney. Depending on the language, it may be considered a post-nuptual agreement, a contract to make a will, or a will. Or, a combination of the some or all of them. Even if the...
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1 Answer | Asked in Real Estate Law, Landlord - Tenant, Probate and Estate Planning for California on
Q: What rights do me and my siblings have to my fathers property and possessions?

His live in girlfriend has his vehicles, all his personal property, information we need to close his affairs, jewelry, safe, and is living in the home my grandparents left to my father. They do not have any children together. She won’t let us in his home.

Bruce Adrian Last
Bruce Adrian Last answered on Oct 12, 2018

Emeryville:

I would meet with an attorney about this. To legally gain access, you will need to have an administrator of his estate appointed. If there is some urgency, the court can also appoint a special administrator to take care of things until the court hearing on the general...
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1 Answer | Asked in Real Estate Law and Probate for California on
Q: How can you tell if your joint tenancy in California has "right of survivorship"? Or is it automatic?

I am a joint tenant with a friend on a house. On the deed, it says that we are both unmarried and are awarded as joint tenants. There is no mention of "right of survivorship". My friend just passed away. Does half of the property goes to his heir?

Bruce Adrian Last
Bruce Adrian Last answered on Oct 12, 2018

Dear Sunnyvale:

The right of survivorship is automatic with joint tenancy. It is this that distinguishes it from a tenancy-in-common.

Real property held as joint tenancy passes to the surviving joint tenant(s) by operation of law upon the death of one of the Joint Tenants. This...
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1 Answer | Asked in Probate for California on
Q: I am administrator & I filed a petition to have the coadministrator removed for not complying.

She also doesn't want to hand over my mother's bank account statements. Can I also file to get rent from these people & herself for living in my parents home still. Or can I also file a petion to have her evicted from parents home along with the other people she has living in the home too.

Bruce Adrian Last
Bruce Adrian Last answered on Oct 5, 2018

Dear Los Angeles:

This is one you certainly want to discuss with an attorney. However, co-administrators need to work together and should not be refusing to disclose information to each other.

On the rent issue, it is technically a breach of fiduciary duty for and administrator to...
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2 Answers | Asked in Probate for California on
Q: I'm the administrator & a sibling is the coadministrator, I have a friend that's a realtor to sell my parents home.

Unfortunately the coadministrator doesn't want her to sell the house even though she knows her very well. She's just doing this to stall & not comply. Does the judge appoint a realtor? She is just doing whatever it takes to stall the house from getting listed. Can I have her removed from... Read more »

Bruce Adrian Last
Bruce Adrian Last answered on Oct 5, 2018

I agree that you should try to work this out with your co-administrator, and that the relationship should be disclosed using a Notice of Proposed Action (unless you and your sibling are the only heirs.)

I do not necessarily agree that a third party is required, particularly if there is a...
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3 Answers | Asked in Probate for California on
Q: What happens to a mortgaged property when homeowner dies intestate and nothing is filed in probate.

What if someone is living in property? I.e... Relative, renter, caretaker

Bruce Adrian Last
Bruce Adrian Last answered on Sep 27, 2018

Dear Van Nuys:

When a person dies, their debts live on. This includes mortgages, which are subject neither to the one-year universal statute of limitations from date of death for most creditors (which excludes various government claims) or the creditor's claim procedure. This is because the...
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