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California Estate Planning Questions & Answers
1 Answer | Asked in Estate Planning, Civil Rights, Collections and Domestic Violence for California on
Q: We had listed on the form when we fill out that fees be paid by the respondent. The attorney was hired after and we told

We told the attorney but during the trial he told the judge that we want 5 years and we thought once that is granted what we stated on the application for restraining order will be granted. It was after that the attorney reported that only 5 years was granted and nothing else by the judge. Could we... Read more »

Dale S. Gribow
Dale S. Gribow answered on Jan 28, 2020

more info needed.

your missive is confusing.

the person to ask re the other side paying your legal fees would be your lawyer who has all of the info in front of him/her.

1 Answer | Asked in Estate Planning, Real Estate Law and Foreclosure for California on
Q: can the trustee convey property into my irrevocable special needs trust with a lean without my consent or knowledge.

If they convey the property with the 1st mortgage then stop paying so that lender calls loan due on sale to pay lender off and trustee:/seller agent

James Edward Berge
James Edward Berge answered on Jan 27, 2020

Assuming the trust agreement authorizes the trustee to accept property from any source, whether encumbered or not, beneficiary or trustor approval is not required.

2 Answers | Asked in Estate Planning and Probate for California on
Q: My father passed away a couple months ago, my step mother told me the next day. She has not returned phone calls or txt

I have had minimal contact with my step mother since my father passed away. She won’t text much or talk on the phone very long, now won’t answer at all. Got a copy of his death certificate and found out he died in California and recently bought a house before he passed. No one in the family... Read more »

Nina Whitehurst
Nina Whitehurst answered on Jan 26, 2020

Schedule a consultation with a probate attorney located somewhere near where you father had lived, e.g. in the same county. (Click Find a Lawyer above.)

Prepare for the consultation by providing a copy of his will and gathering up as much information as you can about what your father...
Read more »

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1 Answer | Asked in Estate Planning and Probate for California on
Q: Do I notify the lender that my parents have passed? The mortgage is current
James Edward Berge
James Edward Berge answered on Jan 22, 2020

It’s not necessary as long as you keep making the mortgage payments, but if you want to know the outstanding balance or want your monthly statements to be sent to another address, then yes, let the lender know of your parents death. Now, if you’re dealing with a reverse mortgage, the lender... Read more »

2 Answers | Asked in Estate Planning and Probate for California on
Q: Dad passed oct 2019, mom passed dec 2019. There is no will & there is a mortgage. Do I continue to pay house?
James Edward Berge
James Edward Berge answered on Jan 22, 2020

Yes. If you fail to pay the mortgage, you will lose the home to foreclosure. Death of a borrower does not trigger a due on sale clause. If you make the mortgage payments, keep track of them all and claim reimbursement from the estate when you can. Without a Will, the children will inherit the... Read more »

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1 Answer | Asked in Probate, Estate Planning and Landlord - Tenant for California on
Q: I was my mothers care taker and I was living in her house when she died,my question is can my siblings evict me?

My mother left no will it's got to go through probate,also I have been the sole care giver and have lived there for 5yrs what are my rights.

James Edward Berge
James Edward Berge answered on Jan 22, 2020

Your siblings have no legal authority to evict you from your mother's house. Only a personal representative for your mom's estate would have the authority to do so, and to become a personal representative requires a probate. Until that time, you have every legal right to remain in the house. If... Read more »

1 Answer | Asked in Estate Planning for California on
Q: My dad passed away no will single and I'm the only child what are my rights

my dad lived in my grandmother's house when he passed my aunt changed the locks and told me that she has power of attorney over my grandma and I need to stay out of the house how do I get his belongings back

Nina Whitehurst
Nina Whitehurst answered on Jan 22, 2020

To do this right, you need to hire a probate attorney to open a probate of your dad's estate and ask that the court appoint you as the executor. Then, as executor, you will have the power of the probate court to back you up as you demand access to gather up your dad's things and distribute them... Read more »

1 Answer | Asked in Probate, Estate Planning and Landlord - Tenant for California on
Q: My mother died and left no will now my sibling tell me I have to move what are my rights
Tobie Brina Waxman
Tobie Brina Waxman answered on Jan 20, 2020

If your mom did not leave behind an estate plan; specifically a living trust, the estate will go through probate, assuming it carries an overall value in excess of $150,000. Whether probate is necessary however, does not change your rights. Without an estate plan, the estate passes via intestate... Read more »

1 Answer | Asked in Estate Planning and Child Custody for California on
Q: Hi my son is a beneficiary of my father in law for his life insurance

Now my father in law passed away then my son is still minor, the insurance ask us court appointed guardian to get my son’s claim. We went to court and they did not help for guardianship estate, we cannot afford to get a lawyer. We dont know what to do to get certificate from the court stating... Read more »

James Edward Berge
James Edward Berge answered on Jan 13, 2020

The insurance company is asking for letters of guardianship which can only be granted to a guardian by a probate court. Merely being the parent of a minor is insufficient authority to claim insurance money belonging to a minor.

A court cannot give legal advice, nor can a legal document...
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1 Answer | Asked in Estate Planning and Probate for California on
Q: Hello, I need to hire a Lawyer and I don't know what kind of Lawyer I need. Please advise

My Brother is Successor to my fathers trust. My father passed in August. He left us both Equal parts. My brother seems to have disappeared. I need to make sure we don't lose the house

Nina Whitehurst
Nina Whitehurst answered on Jan 13, 2020

You are looking for a trust administration attorney. Even better would be an attorney that also handle trust litigation. The attorney can review the trust and advise you as to what needs to be done to replace the MIA trustee.

1 Answer | Asked in Estate Planning and Probate for California on
Q: Does a probate need to have all assets assigned into it to close?

Only parent dies with trust. Multiple properties have to be sold. Beneficiaries are 3 brothers and one sister. Sister dies unexpectedly a month after parent dies. Now we have to go through probate as sister left no trust or will. Her share of parent's trust will have to go through probate.... Read more »

James Edward Berge
James Edward Berge answered on Jan 10, 2020

More than likely a probate will need to be opened for sister's estate before you're allowed to close parent's estate. Once an executor is appointed to sister's estate, perhaps a deal can be struck among the beneficiaries of sister's estate allowing for an in-kind distribution of estate assets to... Read more »

1 Answer | Asked in Estate Planning for California on
Q: How to set up a trust for your beneficiaries, while waiting for payment on a parents trust to be distributed?

Mom died, properties need to be sold to distribute to beneficiaries. I am a beneficiary due to inherit about $500,000. I have cancer. How can I make my own trust for people I want to be my beneficiary, when I don't yet have the amount I am due to receive from my moms trust? It will take a long... Read more »

James Edward Berge
James Edward Berge answered on Jan 9, 2020

Assuming it's possible in your mom's trust, assign in writing all of your right, title and interest in your mom's trust to your revocable living trust. It's possible if your mom's trust does not have a standard spendthrift provision in it. If it does, then you'll have to create a standard Will... Read more »

1 Answer | Asked in Estate Planning for California on
Q: What is the best way to go about buying out my stepchildren's share of jewelry my late husband inherited from my late M?

My mother in law died in 2008 after a long illness, the only thing of value she left behind was two pieces of jewelry valued around $25k. My husband died two years later and I expect to have the jewelry in my possession shortly, as it was misappropriated at the time of his death, but has been... Read more »

Nina Whitehurst
Nina Whitehurst answered on Jan 8, 2020

You can start by obtaining written appraisals from a reputable jeweler. Show the appraisals to the children and offer to pay them each 1/6th of the appraised value. Be sure to get signed receipts from them when you pay them. The receipts should specifically mention that in exchange for the... Read more »

1 Answer | Asked in Estate Planning and Real Estate Law for California on
Q: Can an exactor of an estate sign off on a reconveyance
James Edward Berge
James Edward Berge answered on Jan 7, 2020

It's the lender who signs off on a deed of reconveyance when a loan secured by real property has been paid in full. If the decedent and/or the decedent's estate loaned money to someone and received payment in full, yes, the executor of the estate would sign off on the deed of reconveyance. No... Read more »

2 Answers | Asked in Estate Planning, Real Estate Law and Probate for California on
Q: brother with two children and sister inherited house from mother in california, brother died who does his share go to?
Nina Whitehurst
Nina Whitehurst answered on Jan 7, 2020

It is not possible to answer your question without knowing whether the decedent was married, whether he had a will and exactly how the house was titled.

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2 Answers | Asked in Estate Planning and Probate for California on
Q: Hello, my mother passed away in December 2017. she lived with me for the last 10 years of her life. She had no will.

she had $1,400 in her checking account when she passed. I recently received a letter from her bank stating that after three years they may transfer her property to the state of California. Can I get this money and how do I get it? Thank you very much.

John B. Palley
John B. Palley answered on Jan 6, 2020

Assuming you are entitled to the money (sole next of kin or named in will) then do a small estate affidavit. Forms available at some banks but, if not, then online. That should be it. Just google "California free small estate affidavit form" or something like that. Good luck.

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1 Answer | Asked in Estate Planning for California on
Q: My husband received a letter from fidelity investments expressing their sympathy over the loss of his ex girlfriend.

They asked for a copy of the death certificate to process a beneficiary claim. It doesn’t say specifically he is the beneficiary but this letter came 3 years after her death out of the blue. We sent fidelity the death certificate after getting it from the state of her death. We have heard nothing... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Jan 5, 2020

It sounds like he was still listed as a beneficiary on a 401K or IRA or something.

Don't be shy! Call Fidelity and ask for a status. They wouldn't have sent that form just for fun.

He wasn't married to her was he? Divorce automatically cancels naming your ex as a beneficiary....
Read more »

1 Answer | Asked in Estate Planning for California on
Q: Testamentary Trust established in 1975.

Father died with Testamentary Trust. Mother was managing. She has now died, and had a trust also. Her trust is now irrevocable. Does his Testamentary Trust have to go through probate again, since it had already been in probate to establish it from his Will?

Nina Whitehurst
Nina Whitehurst answered on Jan 1, 2020

Some facts are missing so it is not possible to answer your question, but the short answer is if anything was distributed from the testamentary trust outright to your mother, then those assets would be part of her probate estate. Otherwise, no, all you need to do is follow the process spelled out... Read more »

1 Answer | Asked in Estate Planning for California on
Q: can a trustee settle the estate and distribute to beneficiaries if there is still one property that hasn't sold?

5 homes to sell, 3 beneficiaries, one of them has cancer. Can we let the one with cancer stay in a home and not sell it for a few years, but still settle and distribute the rest of the estate?

Nina Whitehurst
Nina Whitehurst answered on Jan 1, 2020

If all of the trust estate's bills are paid and all beneficiaries agree, then yes you can do that. You should get that agreement in writing.

1 Answer | Asked in Estate Planning and Real Estate Law for California on
Q: My father passed away, my mom now owns their home. Will she end up paying capital gains tax if she airbs her home out

Home in California, bought for 45k in the 1960s and now worth a million.

James Edward Berge
James Edward Berge answered on Dec 27, 2019

If it can be established that their home was held as community property, then the adjusted basis of their home would have been stepped up to its full fair market value at the time of your father’s death for income tax purposes, meaning there would be no capital gain as of your father’s date of... Read more »

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