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California Estate Planning Questions & Answers
2 Answers | Asked in Estate Planning and Social Security for California on
Q: Mom is 78 and rec'v monthly Survivors Benefits from SS. She is a beneficiary for an IRA/401K. Will she lose her SS?

Her brother died, he was 75 and had no dependents. Mom is the next of Kin. She receives her deceased spouses SS Retirement benefits that started when she retired at 62. She was left to take care/close out his banking and found out he had a 401K and an IRA. She is a beneficiary on one and had to... Read more »

Nina Whitehurst
Nina Whitehurst answered on Apr 14, 2021

It depends a great deal on what kind of benefits she is receiving. If she truly is receiving Social Security survivor RETIREMENT benefits, then the inheritance will not impact her benefits eligibility at all. If she is receiving something else, like SSI, the inheritance would impact her benefits... Read more »

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2 Answers | Asked in Estate Planning, Real Estate Law, Civil Rights and Probate for California on
Q: Do children have any rights to their deceased dad's stuff if his mother never informed them of his death?

2 days ago my brother told me that our dad died last March. I live in Missouri and my brother was in prison at the time.The coroner told me that our dad's mom made arrangements for everything. My father told me that there were things he was wanted me to have (pictures and a car). I'm the... Read more »

James Edward Berge
James Edward Berge answered on Apr 12, 2021

In California, the decedent’s children are the intestate heirs of the decedent and not the decedent’s parents. If dad died testate (with a Will), the beneficiaries under that Will are entitled to his property. Demand to know why your dad’s mom thinks she’s entitled to the property. If... Read more »

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2 Answers | Asked in Estate Planning and Tax Law for California on
Q: What can be done if "B" trust assets were donated benefiting "A" trust executor and second wife?

Father-in-law is Bill. His 1st wife is Mary. They had a trust that owned 20 rental homes. Beneficiaries were 3 kids. About a year after Mary died, Bill remarried. Ten yrs later, Bill and second wife Joyce created a trust. At that time, 10 rentals were put in a "B" trust (Mary's... Read more »

Jonathan Purcell
Jonathan Purcell answered on Apr 12, 2021

The 'B' subtrust of the Mary and Bill trust, holds ten properties.

Joyce presumably has a right to periodic income from rents.

Could a loan be arranged using equity based on one or more properties to secure a loan, which would be repaid on the death of Joyce?

This...
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5 Answers | Asked in Estate Planning, Real Estate Law and Probate for California on
Q: Should my partner and I purchase our home as a joint tenancy or TIC? We are unmarried; He has kids from prior marriage.

We both want to be able to remain in the home, make improvements, or sell if the other passes away. He wants to ensure his children to receive his share of the proceeds if the house is sold after his death. We may get married and have more children in the future. What is the best ownership... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Apr 12, 2021

TIC, or put it in a Trust.

Joint tenancy would mean that when A dies, B gets it all. B may not remember or want to give assets to the children of A. B might just meet a new person after the funeral and forget A completely! It happens, and poor A's kids get left out in the cold....
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3 Answers | Asked in Bankruptcy, Estate Planning and Collections for California on
Q: Can bank account be garnished due to delinquent student loan?

my 64 year old sister took out several student loans about 15 years ago. At that time, she was diagnosed with advanced stage ovarian cancer. She survived the cancer, but the treatments wiped her out financially and can no longer work. She has no income, no savings, and can't get a job due to... Read more »

Theodore Allan Greene
Theodore Allan Greene answered on Apr 11, 2021

Your question cannot be answered with only the information you have provided. Your will need to get a more in depth analysis with both an estate planning attorney and an accountant. And perhaps a bankruptcy attorney. Any money spent now will reap huge rewards down the road. Hopefully you are using... Read more »

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2 Answers | Asked in Estate Planning and Probate for California on
Q: I am 50/50 owner of a house My brother lives in now am i able to move in at anytime since i am 50 owner to in California

just found out i was part owner, brother kept trust from me.

James Edward Berge
James Edward Berge answered on Apr 8, 2021

If you hold title to the property as tenants in common (both of your names are on the deed), then both of you have the equal right to the use and possession of the property absent an agreement between the two of you to the contrary. But if this is trust owned property and your brother is trustee... Read more »

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1 Answer | Asked in Estate Planning for California on
Q: Someone left me an estate. There is a bank account. Do i have any right to it

The account has no one else on it but i am the inheritor, am i entitled to the money from that account.

Nina Whitehurst
Nina Whitehurst answered on Apr 6, 2021

If you are the sole beneficiary of the will, and if the account had no designated death beneficiary, then yes you are entitled to the account. There is a legal process required to claim it. A probate attorney can help you with this.

1 Answer | Asked in Divorce and Estate Planning for California on
Q: Is it possible to get a lawyer to help via Pro bono for a senior citizen divorce/power of attorney case?

My dad is 83 and does not want to live in a care facility. I believe my mom may have a durable power of attorney.

My dad feels that my mom is not capable of representing his needs.

My dad was in a care facility and was assaulted by another patient. As a result he was hospitalized.... Read more »

Julie King
Julie King answered on Mar 31, 2021

The key to your situation will be: (1) the language in your father's health care directive and durable powers of attorney; and (2) if your father has sufficient mental capacity to handle his own health care (and/or finances). There is a legal standard that must be met to ensure people... Read more »

2 Answers | Asked in Estate Planning and Probate for California on
Q: Hi...I live in California (LA County). My wife was the sole beneficiary on her older brother's 401k account.

Her brother died of Covid on January 19th. My wife then died of Covid 4 days later. What happens to the 401k account? Her brother had a daughter, but she wasn't listed as a beneficiary. Does the 401k pass to the daughter, or does it go to my wife's estate?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Mar 29, 2021

It should go to your wife's estate.

A Will or a Trust normally has provisions regarding this sort of situation, but unless the 401K administrator had the brother sign something unusual, then the money would still go to the estate of your wife. But check with the administrator.

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1 Answer | Asked in Estate Planning and Probate for California on
Q: Claim Homeowner exemption on deceased parent's home

My father passed away in October, 2020. He is a resident in Santa Barbara County. I have a probate case filed with probate branch in Santa Barbara County. I received a Homeowner Exemption termination Notice from county assessor's office. I live in Texas. I would like to know which option... Read more »

James Edward Berge
James Edward Berge answered on Mar 22, 2021

Since your father passed away before 2/15/2021, you should qualify for the parent to child reassessment exemption under California Prop 13/58 regardless of whether this is your principal residence, a second home, rental home, or commercial property. The homeowner exemption merely reduces your... Read more »

1 Answer | Asked in Civil Litigation, Elder Law and Estate Planning for California on
Q: Estate law missing will

Mother died, sister and brother got a lawyer and excluded brother? Is the excluded brother automatically entitled to any windfall should they receive an inheritance? This is in CA

Julie King
Julie King answered on Mar 15, 2021

It depends on the dollar value of your mother's estate, which is all of her assets except retirement, her car, and a few other items. If your mother's assets are valued at $166,250 or more, the law requires the estate to go through the Probate Court, so a judge can supervise the... Read more »

2 Answers | Asked in Estate Planning for California on
Q: My daughter left no will but had made me beneficiary of all she had. Do I need to go to court for anything?

Her bank accts, life insurance and house were all under both our names

Jonathan Purcell
Jonathan Purcell answered on Mar 14, 2021

Bank and life insurance should pass through beneficiary designation by providing to the relevant institutions a certified death certificate and your credentials.

Assuming that the house was held in joint tenancy, You will need to file AFFIDAVIT - DEATH OF JOINT TENANT, a Preliminary...
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3 Answers | Asked in Estate Planning and Probate for California on
Q: Is there anything that has to be filed when one person in a joint trust dies? If so can I find out through county record
Ernest Charles Payne Jr
Ernest Charles Payne Jr answered on Mar 14, 2021

Not necessarily. If title to real property is involved, an affidavit of death may have been filed with the county recorder to change title. It will not give you the specific language/ contents of the trust, however.

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2 Answers | Asked in Estate Planning and Probate for California on
Q: Can my stepmom change a joint trust after my father has died to try to remove me from inheriting?

I honestly do not trust her not to try and pull something so her kids get it all so I am just curious. She doesn’t tell me anything and I have not seen any paperwork. I was just told by them years ago before my father passed away.

Ernest Charles Payne Jr
Ernest Charles Payne Jr answered on Mar 14, 2021

It is entirely possible. It depends on how the trust is written and whether it was made irrevocable by your father’s death. Without seeing the document, no attorney can tell you for sure.

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2 Answers | Asked in Estate Planning, Contracts and Probate for California on
Q: I gave my kids each 25% of my trust my mom put it in her will can I take it back from my kids

My mom asked each on of my brothers and sisters if we wanted to give our kids any shares of ours in the trust, before she passed away in 2003 I said yes so each one of my kids receive 25 % each month. My son I want to remove him from getting another penny out of my share he doesn't deserve it... Read more »

Jackie Marie Howard
Jackie Marie Howard answered on Mar 12, 2021

Yes. It would be wise to consult with an experienced estate planning attorney, who would be able to advise you thoroughly, regarding the procedure and ramifications of omitting your son from your Estate.

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3 Answers | Asked in Estate Planning and Probate for California on
Q: If I am named a beneficiary in a trust does the trustee have to provide me with a copy of the trust?

My dad died a couple years ago and I just found out he had a trust set up before he died that names me a beneficiary but my stepmom won't give me a copy or tell me anything about it. She has already sold off a lot of his things and I just discovered she sold their home and moved across the... Read more »

James Edward Berge
James Edward Berge answered on Mar 12, 2021

Yes, you’re entitled to a copy of the trust agreement. Google search California Probate Code section 16061.7 to see what you’re entitled to. Make sure the trustee is aware of this code section. Failure to abide by this rule could result in suspension of her powers, and her removal as... Read more »

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4 Answers | Asked in Estate Planning for California on
Q: I have a Trust and Living Will with an Amendment. I want to revert to the original. Can I simply tear up the Amendment?

The Amendment was done about 7 years after the original Trust by a different lawyer. It was a change to my beneficiaries. Now I want to reverse that. Do I need to see a lawyer or can I simply tear up the Amendment so that the original stands as is?

David Ostrove
David Ostrove answered on Mar 7, 2021

If you destroy it with the intent to revoke it is revoked.

But you already revoked the original.

So, you should do a new one, making your intentions clear!

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2 Answers | Asked in Estate Planning and Probate for California on
Q: What if a non-probate asset is listed in a Will?

If you were appointed by the court to handle the estate or, if you were to file a petition to determine success to real property, and discover that an asset listed in the Will turned out to be a non-probate asset, wouldn't you leave that out of the Inventory and Appraisal forms since they only... Read more »

James Edward Berge
James Edward Berge answered on Mar 6, 2021

Yes, if you were appointed to be the executor of an estate, you would omit any assets from the estate inventory that pass by some other means, such as by right of survivorship or by beneficiary designation or by spousal property petition. You’re not eligible to file a petition to determine... Read more »

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1 Answer | Asked in Estate Planning and Probate for California on
Q: my mother-in-law passed away, her son, my husband, had passed away years ago, am I considered her next of kin?

For the purpose of getting a certified death certificate, am I legally allowed to request it? She had other children who don't talk to me so I cannot ask them for it. I need a certified death certificate in order to evict those very children from my property.

Julie King
Julie King answered on Mar 5, 2021

You should be able to get a death certificate from the County Clerk’s office. Go to the website of the Clerk’s office for the county in which she lived if she was a California resident. (If she was not a resident of California, but died in California, then you would check the county in which... Read more »

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