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California Probate Questions & Answers
1 Answer | Asked in Probate for California on
Q: I sold my dad's house he left me and all the paperwork been done can I go to court early an ask the judge for the money
Genene N. Dunn
Genene N. Dunn answered on Nov 19, 2020

If the estate has cash, it is possible under the probate code to file an ex parte petition to do a preliminary distribution of up to 50% of the estate. But eventually you will have to do your accounting and petition for final distribution to be able to distribute everything.

2 Answers | Asked in Estate Planning, Civil Litigation and Probate for California on
Q: Living trust amendment not signed before death but...Dad gave power to amend to trustee ???

15401. (a) A trust that is revocable by the settlor or any other person may be revoked in whole or in part by any of the following methods:

(1) By compliance with any method of revocation provided in the trust instrument.

(2) By a writing, other than a will, signed by the settlor or... Read more »

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

If a trust amendment has not been signed by the trustor or an agent acting on behalf of the trustor under a power of attorney before the death of the trustor, it is ineffective.

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1 Answer | Asked in Probate for California on
Q: my attorney never filed the final judgement papers for probate at the county clerks office it is sill in my dads name

My attorney said he gave me the papers but he never did. How do I go about getting it in my name

Maurice Mandel II
Maurice Mandel II answered on Nov 13, 2020

Getting What in your name? The case? The house? Something else? Insufficient information. Consult with your own attorney or hire a new Estate attorney in your area.

Justia disclaimers below, incorporated herein.

2 Answers | Asked in Contracts, Estate Planning and Probate for California on
Q: My dad died before he signed amended trust, even though confirmed with estate planner, during covid?

My Dad received amended copy of his living trust 3 days before he died and had not signed them. He did contact estate attorney and confirmed draft. I don't believe signing them was exclusive, but I do know that my dad would want his last wishes honored. I know there must be mitigating... Read more »

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

If he didn’t sign the amendment, it’s ineffective. It doesn’t need to be notarized, but it does need to be signed by the trustmaker. Sorry to be the bearer of bad news, but to tell you otherwise is just wishful thinking.

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1 Answer | Asked in Probate for California on
Q: Question regards to probate asset inventory, attorney fees, engagement with a laywer no Will, no living trust, Dad CA

-My father deceseased in CA. he has no Power of Attorney, no Will and no Living Trust

- My dad didn't tell me if he named me as beneficiary on his IRA accounts. Fidelity and Vanguard delcined to answer beneficiary question due to now POA.

-How will probate referee will... Read more »

Ernest Charles Payne Jr
Ernest Charles Payne Jr answered on Nov 6, 2020

Power of attorney issue is irrelevant. It terminates upon the death of the principal.

The probate code lists who the beneficiaries are under intestate succession (when the decedent passes without a will).

Any account (bank, retirement, life insurance, etc) with a listed beneficiary...
Read more »

2 Answers | Asked in Probate for California on
Q: Grandmother passed in Calif, she had two sons. One (my father) passed away years ago. Does that make me an heir?
John B. Palley
John B. Palley answered on Nov 3, 2020

If she had no will I would say yes. If she had a will I would say maybe.

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1 Answer | Asked in Probate for California on
Q: My brother in law asked me to sign his will as a witness and told me specifically to follow instructions in

This estate planning binder. He gave me the spare keys to his home to retrieve it but all the docs were stolen from his estranged son whom he does not trust. He told this to our other family members times. So now the son refuses to let me see the will. I'm afraid he would fraudulently change... Read more »

James Edward Berge
James Edward Berge answered on Oct 29, 2020

Have you called the attorney's office that prepared the Will? They should have a copy. A copy can be submitted to probate if there's a good reason to believe the original cannot be found and was not revoked. You can also file a petition for probate to have yourself appointed as... Read more »

3 Answers | Asked in Estate Planning and Probate for California on
Q: If my father left me money in his trust, can the trustee change that trust when he passes away
Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Oct 29, 2020

No. Absolutely not. The Trustee must follow the instructions of the Trust.

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1 Answer | Asked in Probate for California on
Q: If I signed on my brothers will and he told after he passes to read it. The will was stolen by his son.

Am i able to request to see the original will ? If so, how do i do this?file a form at probate?

Shawna Murray
Shawna Murray answered on Oct 29, 2020

It is highly probable that your brother had his original will stolen because most attorneys no longer store originals for clients. Your brother should prepare a new will and store it where his son will not easily find it.

If your brother is already deceased, then the executor of his estate...
Read more »

1 Answer | Asked in Probate for California on
Q: If you sign as a witness on a trust or will do you have the right to obtain a copy of what you legally signed ?

Yes. I am listed as a beneficiary for sure but don't know if its from insurance or retirement fund.

Ernest Charles Payne Jr
Ernest Charles Payne Jr answered on Oct 28, 2020

In CA, a will must be witnessed. A trust does not need to be witnessed. You have no entitlement under the probate code to copies of either document merely because you signed it as a witness. You must have either a pecuniary interest (you are a beneficiary) or some duty (eg. Executor of the will or... Read more »

1 Answer | Asked in Probate for California on
Q: If you are have a medical POA for your father is that the same as a financial POA or does that make you the executor
Ernest Charles Payne Jr
Ernest Charles Payne Jr answered on Oct 28, 2020

They are three different things. The person listed on the advance directive (medical POA) may or may not be the attorney in fact for the financial POA. Moreover, those documents are no longer effective upon the death of the person who executed them. Executor refers to a person designated under a... Read more »

2 Answers | Asked in Probate for California on
Q: Can a son of a deceased person appoint himself as an executor of a pour over will in state of ca?

We dont know who the executor was since the will and all legal doc were stolen by his son

Ernest Charles Payne Jr
Ernest Charles Payne Jr answered on Oct 28, 2020

The pour over will should designate an executor. Moreover, the fact that it is a “pour over” will means there is a trust, so probate, and hence the executor duties, may not be necessary. Who is the executor of the will and trustee of the trust? They are frequently the same person.

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1 Answer | Asked in Estate Planning and Probate for California on
Q: My mother was recently murdered she owned a house in Las Vegas, Nevada. She had no will. And I live in California

Since I live out state how do I petition the state for her house property?

Maurice Mandel II
Maurice Mandel II answered on Oct 28, 2020

You need to contact an Estate or Probate attorney in Nevada. Suggest you repost this in Nevada.

Justia disclaimers below, incorporated herein.

1 Answer | Asked in Estate Planning and Probate for California on
Q: I signed as a witness for trust documents for my brother in law who asked me to execute his wishes if ever he passes.

.

Maurice Mandel II
Maurice Mandel II answered on Oct 28, 2020

While it is honorable that you want to see BIL's wishes carried out, truthfully you are just a witness and it is not your duty or responsibility. It is the duty of the person named as executor. You should notify the people that you know were the other beneficiaries that the documents have... Read more »

1 Answer | Asked in Estate Planning, Banking, Elder Law and Probate for California on
Q: Is it possible for a widower to cash a check made out to him and his deceased wife?

My elderly father is receiving a check, titled to him and my deceased mother/his wife. It is titled using AND, not OR, meaning both signatures are required.

They are the grantors of their living revocable trust, and were the only two trustees. Father became successor trustee. I am sole... Read more »

Maurice Mandel II
Maurice Mandel II answered on Oct 28, 2020

What is not clear from your post is who is the maker on the check? You provide so much extraneous information that is sounds like the check is coming from the trust that your father is the trustee on. But that makes no sense. IMO you should go to the maker of the check and request that the check... Read more »

1 Answer | Asked in Estate Planning and Probate for California on
Q: My husband changed his retirement beneficiary to his daughter.. we are married for 17 years. Who gets the money?
James Edward Berge
James Edward Berge answered on Oct 27, 2020

If the retirement account was an IRA, his daughter gets the money as primary beneficiary even if the account was community property, because spousal consent is not required to setup or change a beneficiary designation on a traditional or Roth IRA account. If the retirement account was a current... Read more »

1 Answer | Asked in Probate for California on
Q: . All left was a summer house in Maine. I will never go there how do I get my sister's to buy me out for my share?
Nina Whitehurst
Nina Whitehurst answered on Oct 25, 2020

First just ask them. Send one of them a written offer to sell your share for a certain amount and state a date on which the offer will expire. If she does not accept, send the same offer with an expiration date to the other sister. If that doesn’t work, send an offer to both of them offering to... Read more »

3 Answers | Asked in Criminal Law, Estate Planning, Elder Law and Probate for California on
Q: What are the steps on revoking a durable power of attorney from a spouse. The partner is no longer able to speak.

I'm the son of the partner who is unable to speak. Her spouse is not making choices in her best interests and our family believes he is using his power for his benefit. We believe he is using her money, credit cards, and has mentioned he is using our elderly grandmothers (now deceased) bank... Read more »

Nina Whitehurst
Nina Whitehurst answered on Oct 24, 2020

If the power of attorney is NOT durable then it was automatically revoked when your mother became incapacitated. If it is durable and your mother is no longer able to revoke it, then you would have to go to court to get a guardian and conservator appointee. The conservator would then be able to... Read more »

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2 Answers | Asked in Probate for California on
Q: Robinhood, has some stock of my husbands stock and will only transfer if I provide a probate document naming me executo

Small estate that shouldn't require probate. He did not have a will but I was beneficiary to his life insurance. Is there an easier way to provide them this information.

Maurice Mandel II
Maurice Mandel II answered on Oct 22, 2020

There is a section of the Probate code that provides for the non probate administration of small estates. You should follow those procedures and if Robinhood won't transfer and re-issue the certificates to you, sue them in small claims. Suggest you hire an attorney to write you a legal brief... Read more »

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1 Answer | Asked in Estate Planning and Probate for California on
Q: I have been married for 30 years to my husband. I found a Will he rewrote about a year ago that has him giving our home

to his grown (4) KIDS, unless I can buy them out. Our home is in both our names on the title. Can he do that, if I don't agree?

Maurice Mandel II
Maurice Mandel II answered on Oct 21, 2020

You really need to go to a Family law attorney in your local area with these documents and see what is going on and what your rights are. Under California law, as a community property state, the spouse should inherit, but it might be possible under certain circumstances for a spouse to will away... Read more »

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