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California Estate Planning Questions & Answers
2 Answers | Asked in Elder Law and Estate Planning for California on
Q: My 89 year old father (widower) in Arizona wants to set up a living trust for his mobile home and car.

My father still has a small mortgage on the home. He already has a Will and Durable POA. He is interested in creating a mechanism such as a living trust by which his home and minivan can be transferred to me as his sole heir without the necessity of the property going through probate. His Will... Read more »

Jonathan Purcell
Jonathan Purcell answered on Sep 25, 2020

I'm not familiar with Arizona laws. A quick internet search reveals that Arizona has a form for beneficiary designation of automobiles. Please refer to the link below.

https://apps.azdot.gov/files/mvd/mvd-forms-lib/96-0561.pdf

Jonathan Purcell is a California Attorney. This...
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1 Answer | Asked in Divorce, Estate Planning and Family Law for California on
Q: I was wondering what all i can get out of my husband in the divorce

I was wondering what all i can get out of my divorce? My husband was an extremely emotionally abusive person and there has been times in which he was physically abusive. He cost me my job by calling my boss and accusing me of having an extramarital relationship with a coworker. The home and... Read more »

Manuel Alzamora Juarez
Manuel Alzamora Juarez answered on Sep 23, 2020

The family code in California has a section which states that all community property is divided 50-50 between the parties.

3 Answers | Asked in Estate Planning and Probate for California on
Q: Once someone dies who starts the process of the will?

My single Dad passed away in June leaving 3 offspring in our 50's. My brother moved in with Dad several years ago due to no home

For last 3 years Dad needed care provided primarily by brother. Sister/me assisted 2 days/wk. After Dad died, bro claims Dad left all to him, discontinued... Read more »

Shawna Murray
Shawna Murray answered on Sep 22, 2020

I am sorry for your loss. If there was a will, it should have been lodged with the court in the county where your father resided. The law says it must be lodged within 30 days after the death. If it was lodged, you can then view at the court. Of course, there might not be a will and perhaps your... Read more »

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1 Answer | Asked in Estate Planning for California on
Q: Uniform Testamentary Additions to Trust Act (UTATA) -

Justia states the UTATA requires the trust also reference the pour-over will. What statement added to the trust would meet this requirement?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 21, 2020

I believe you are mistaken.

The UTATA allows a Pour Over Will but does not mandate any reference in the Trust. You can read the whole thing at...
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2 Answers | Asked in Estate Planning and Probate for California on
Q: What wording should beneficiaries use if they want to reassign part of their inheritance?

I'm the executor of my father's estate. He meant to divide his estate into six equal parts, for his five living children and the widow of his one pre-deceased child. He wrote the will without the help of a lawyer, and inadvertently left out his daughter-in-law by referring to her as his... Read more »

John B. Palley
John B. Palley answered on Sep 16, 2020

I think you have two ways to accomplish this:

1) Have the other 5 people each sign an "assignment" of 1/6th of their inheritance to the DIL. That would cause everybody to get 1/6th each I believe (assuming everybody signs off).

2) Have all 6 people sign a...
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1 Answer | Asked in Estate Planning, Collections and Public Benefits for California on
Q: Would a lien on my brother's inheritance prevent it from being counted as income or asset by SSI and Medicaid?

I'm executor of my father's estate. The funds will be divided among 6 siblings, about $6000 each. One brother is on SSI, SSDI, and Medicaid, in Vermont. If he inherits $6000, he is in danger of losing his Medicaid until he spends $4000. Losing his Medicaid could cost him a lot more than... Read more »

Sally Bergman
Sally Bergman answered on Sep 14, 2020

This is a question that needs to be answered by an attorney licensed in Vermont and familiar with its Medicaid rules and regulations as every state is different. There are likely ways he can spend that amount of money down without interrupting his SSI/MEDICAID benefits and/or can create an ABLE... Read more »

2 Answers | Asked in Estate Planning and Real Estate Law for California on
Q: Paying off my parent's mortgage and putting the title under my name

My parents, who are in their 80's still paying mortgage on house. What is involved for me to pay off the mortgage and putting the title under my name so my parents do not have to worry about this anymore?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 12, 2020

NO!!!!!!!!

If you move the house into your name while they are alive then you will give up a HUGE tax advantage. Right now if the house is sold, your parents have a big tax liability for all the profit they make on the sale (probably). If they GIVE the property to you then you carry the...
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2 Answers | Asked in Estate Planning and Probate for California on
Q: My ex husband has allowed me to use his pickup for the past year. His son says he will tell police I stole it.

The son inherited all assets in a trust. I am 72 and guardian of my great granddaughter since her mother and grandmother both died. I have told the son he can come and get the truck. He says that I must return it or he'll tell the police I stole it. I told him he could come and pick it up,... Read more »

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

No, you've not stolen the vehicle. You were permitted to use it while the vehicle owner was alive. Now that the vehicle owner has died, his heirs are entitled to ownership and possession of the vehicle. There's nothing that you're doing to prevent these heirs from picking up the... Read more »

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2 Answers | Asked in Estate Planning for California on
Q: Does a lease/rental agreement transfer with a mobile home with a living trust when the home goes to a family member?

I am the trustee on my mother in law's living trust. When she passes, her mobile home will be transferred to my sister in law who lives with her and serves as her care giver. She presently has as lifetime rental/lease agreement with the mobile home park. Does the lease agreement transfer with... Read more »

James Edward Berge
James Edward Berge answered on Sep 8, 2020

No. A lease is merely a tenant’s right to possession of property during the lease term. You said that your mother in law was the tenant and the lease term was the life of your mother in law. Once she passes, the lease comes to an end by its terms. The mobile home on the other hand was owned... Read more »

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1 Answer | Asked in Estate Planning and Family Law for California on
Q: How can I get a certified death certificate with out being an executor

My husband is one of the beneficiary of his Uncles account at a financial advisor. The Financial Advisor contacted him and told him his uncle died but, needs a certified death certificate. My husbands Brother is the executor of his estate and is refusing to get a death certificate. My husband... Read more »

Maurice Mandel II
Maurice Mandel II answered on Sep 8, 2020

You can hire an attorney to represent your beneficial interests, he can get the death certificate.

Justia disclaimers below, incorporated herein.

1 Answer | Asked in Estate Planning for California on
Q: New Baby Not Listed in the Family Trust - Will She Still Inherit?

My boyfriend is a co-trustee and beneficiary of a family trust. The entire family consists of my boyfriend, his mother and brother (the three co-trustees). They do not have any other family members, extended or otherwise. However, last year my boyfriend and I had a daughter together, but she is not... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 6, 2020

You have to look at the Trust to see how it is written. When I write one I make it so you never have to worry about this problem and don't have to update your Trust every time anyone has a baby. I bet this Trust is written that way too, BUT a Trust can be written any way the client wants so... Read more »

3 Answers | Asked in Estate Planning for California on
Q: If I get a Statutory Will Form and fill it out correctly and have two witnesses, is it a legal document? I am in CA.
James Edward Berge
James Edward Berge answered on Sep 5, 2020

Yes, but don’t add to it or get creative. Follow the instructions on the form carefully. You can fill in the blanks and check boxes, but that’s all you can do.

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1 Answer | Asked in Estate Planning, Real Estate Law and Tax Law for California on
Q: Prop 13 question regarding selling my Father's house I inherited.

When my dad passes, and I inherit his house, I have been informed that under Prop 58 I can keep the Prop 13 benefit that my dad has. However, if I were to sell the house, can I therefore transfer that Prop 13 benefit to another residence in a reciprocal county? If so, do I need to be a resident... Read more »

James Edward Berge
James Edward Berge answered on Sep 2, 2020

You're referring to California Prop 60 and Prop 90. Here's a link to the California Board of Equalization website which explains the requirements of the law: https://www.boe.ca.gov/proptaxes/prop60-90_55over.htm

1 Answer | Asked in Estate Planning and Tax Law for California on
Q: If my dad passes, and house is in trust to me, can i resume the prop 13 property taxes?

My father owns his house outright, and wants to put the house in my name now. First, is this a good idea? The house is in a trust to me in case he passes. Second, if and when I become the owner of the house, can I resume the prop 13 taxes? If I can resume those prop 13 taxes, if I were to sell... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 2, 2020

Terrible idea!

If you inherit the house instead of having it gifted, you save a ton of money on taxes. If you inherit then your tax basis is stepped up to the current value; if dad gifts it then you also get his tax basis. That means a huge difference in the taxable gain when you sell....
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1 Answer | Asked in Real Estate Law, Estate Planning and Probate for California on
Q: How to get name on deseased dads deed for house he owned outright

Theres 3 sibling s im the oldest

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Sep 2, 2020

To get a deed changed you need an order from the Probate Court, unless the property was in a Trust.

The Probate Court will look at the Will and hold hearings to make sure there are no problems, and then give an order for authority to distribute the assets. If there was no Will then you do...
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1 Answer | Asked in Estate Planning and Probate for California on
Q: What if provisions in a will are impossible?

The provision in my uncles will were impossible to do. It stated in the will that i was to return all the money that was given to me by my uncle before his death. My uncle cashed in all his cds and he put this money in a checking account in my name only. I paid all his bills ( property tax , phone... Read more »

Maurice Mandel II
Maurice Mandel II answered on Aug 31, 2020

You need to contact a probate attorney to represent you. It may be possible that the Will could be invalidated as a result of undue influence on the Testator, and that you might be a pretermitted heir. The Law does not require the impossible.

Justia Disclaimers below, incorporated herein.

1 Answer | Asked in Consumer Law, Contracts and Estate Planning for California on
Q: I would like to end a conservator relationship that my aunt has as we, her family can pay her bills for her.

My aunt is an older widow who is being overcharged for payment of 2 bills.

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

Now that your aunt has been legally conserved, it's really not up to you to decide whether your aunt should be conserved or not, it's now up to the court, the court investigator, and your aunt's attorney to decide that matter. Your opinion certainly matters, but the court will... Read more »

1 Answer | Asked in Estate Planning and Probate for California on
Q: I have high risk Leukemia. How can I ensure that my kids stay w/ my partner if I pass? I have full legal/physical.

Their father has felonies, drug addiction, multiple prison sentences, has not been a part of their lives in over 5yrs.

Shawna Murray
Shawna Murray answered on Aug 29, 2020

I am sorry that your are in this predicament. Unfortunately, your children’s other parent would be first in line to get custody. Your should consult with attorneys about adoption and estate planning. If partner would consider adopting the children then the biological father would be out of the... Read more »

1 Answer | Asked in Estate Planning, Real Estate Law, Appeals / Appellate Law and Probate for California on
Q: California supreme Court ruled against a estate beneficiary now beneficiary wants to sue a waste of money?
Maurice Mandel II
Maurice Mandel II answered on Aug 28, 2020

It sounds like this person is on the road to being declared a "vexatious litigant." Have a glass of wine and relax, you cannot stop them from doing what they insist on doing, you can only defend yourself with a good probate/Civil Litigation attorney. Best of luck to you.

Justia...
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1 Answer | Asked in Estate Planning for California on
Q: My parents both passed away within 1 week of each other. There is a will saying I inherit everything.

My parents both passed away within 1 week of each other. There is a will saying I inherit everything. They own outright a trailer and a truck and have a bank account (less than $20k worth). No real estate or other assets and no outstanding credit. Do I need to file a small estate affidavit if I... Read more »

Sally Bergman
Sally Bergman answered on Aug 21, 2020

My condolences for your very tragic losses. If your parents died in 2020, the small estate limit is $166,250 so if the total of their assets is less than that, a small estate affidavit should be all that you need. You will need certified copies of the death certificates and you must wait at least... Read more »

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