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California Estate Planning Questions & Answers
1 Answer | 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 »

1 Answer | Asked in Estate Planning and Family Law 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 »

2 Answers | Asked in Estate Planning, Elder Law, Identity Theft and Probate for California on
Q: Family member passed away, discovered money was stolen courtesy of the bank. What can we do?

A family member recently passed away while settling affairs we found out a family member was stealing his money by forging checks. What legal recourse do we have based on financial exploitation? He was 64 and disabled and required assistance. The banks informed us of the questionable activity at... Read more »

Bill Sweeney
Bill Sweeney answered on Mar 3, 2021

Presumably, identify theft has occurred. If so, you might find the following web address helpful.

https://oag.ca.gov/idtheft/facts/victim-checklist

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2 Answers | Asked in Estate Planning and Probate for California on
Q: I want to prepare a peition to determine succession to real property, but I am worried about the fees

My dad's estate consists primarily of his 1/3 of our family house (mom lives with us; all our names are on the deed as TIC (line to vest title was left blank) and two cars in his name. I want to use the petition to transfer the titles into my name since I'm listed as the sole beneficiary,... Read more »

David Ostrove
David Ostrove answered on Mar 2, 2021

It may not be a difficult or expensive situation. You need to talk to a tax lawyer. YOU Can probably transfer title to the cars without any lawyer or court involvement. The 1/3 interest in the house; depends how title is held. Have a short discussion with a tax lawyer. It may not be as bad as you... Read more »

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3 Answers | Asked in Estate Planning for California on
Q: Is my grandmother the sole mortgagee of the house now?

My grandfather passed away. He and my grandma were the two mortgagors (borrowers) to the home my grandma lives in now. The house is in CA a community property state, however the house is not paid off. What do we have to do to ensure she keeps the house.

James Edward Berge
James Edward Berge answered on Mar 2, 2021

Nothing. If she was the borrower, she’s still the borrower. If the house was the collateral, the house is still the collateral. There’s not even the need to inform the lender of the borrower’s death. Just keep the loan paid current and everything will be just fine.

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3 Answers | Asked in Estate Planning and Probate for California on
Q: I'm in Calif. and I'm doing a Revocable Living Trust. My grown kids are Trustees. Do they have to sign this doc?

I'm confused about how many people need to be in front of my Notary Public. My wife and I as "Grantors" - OK .

My grown kids ??? Both of them are named in the document as Successor Trustees or just trustees. Please specify if all of need to be present in front of the Notary during the signing.

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Mar 2, 2021

Grantors and Trustees.

Nobody else gets a say in the matter.

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1 Answer | Asked in Estate Planning for California on
Q: WFB and BBVA Bank won't give me basic information on accounts. I am Executor of Estate and Successor Trustee of Trust.

My Friend was a CA resident and died on 2/4/2021. I have given them Death Cert. and Trust Cert. Accounts were in his individual name not in the trust. Why can't I get information from them?

Carol A Fauerbach
Carol A Fauerbach answered on Feb 27, 2021

Your powers as Trustee will not allow you to access information for accounts outside of the Trust. Your powers as Executor are only used for assets in the probate estate. A probate estate contains assets that are not owned by a trust, not jointly owned by another person who survived your friend,... Read more »

2 Answers | Asked in Estate Planning for California on
Q: California - my mother plans to leave me her house (paid-off) when she dies, what taxes will I need to pay when I sell?

She's setting up her estate planning with a lawyer in Nevada where she lives.

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Feb 26, 2021

None. Ish.

When she passes the house to you, it gives you a stepped up basis with regard to capital gains taxes. Her tax basis was what she paid but yours will be what the value was when she died (good for you financially). So you will only be taxed on any gain from the date of her...
Read more »

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3 Answers | Asked in Estate Planning for California on
Q: How can I activate a Living Trust as Successor Trustee while the Settlor is still living, but has dementia?

I need advice and assistance in how to declare the Settlor incapacitated which the Trust allows for. Relatives are trying to remove him from his home, acting only in his name, and I need to have legal authority to provide for the Settlor's care and welfare under the Trust before they act.... Read more »

Carol A Fauerbach
Carol A Fauerbach answered on Feb 25, 2021

The first step is to review the terms of the trust to determine its instructions regarding incapacity and appointment of a successor trustee. The trust will also provide terms about the authority of the successor trustee. You should seek assistance from an attorney who works in trust... Read more »

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2 Answers | Asked in Divorce, Family Law, Estate Planning and Probate for California on
Q: In CA. My husband/his ex never filed a QDRO. He died. What do I need to do to get CalPERS to pay me his pension?

He caught Covid in the line of duty. I had POA for CalPERS. I'm his beneficiary. I got the QDRO drafted but it wasn't ready until a month after he died so he couldn't sign it. How do I get an order from court that doesn't require his signature so CalPERS will release the lien on... Read more »

Tobie Brina Waxman
Tobie Brina Waxman answered on Feb 23, 2021

You probably don't have standing to act on his behalf in family court. That being said, there's definitely something that can be done. When someone dies, the successor in interest (probably you) can be joined into the divorce case to sign documents, including a QDRO. That's what... Read more »

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2 Answers | Asked in Contracts and Estate Planning for California on
Q: Our mom died now my sister and I are the equal owners of her trust. I have a 25 year contract to farm the almonds

The lease states: “if the property is sold during the term of the lease the lease shall terminate and the lessee shall be entitled to the sum of $5000 per year for all years remaining on the lease as liquidated damages.”

If I buy the property before the lease is over does the trust owe... Read more »

Jonathan Purcell
Jonathan Purcell answered on Feb 20, 2021

You should have an attorney review the lease, the contract, and the trust, as well as other real estate documents.

This posting does not create any attorney-client relationship. The information presented here is general in nature and is not intended nor should be construed as legal advice...
Read more »

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2 Answers | Asked in Estate Planning for California on
Q: What rights does a lawyer for an attorney-in-fact DPA for finances as agent for the Trust beneficiary/principle have?

A beneficiary's DPA's lawyer is asking questions/contesting about the administration of a Trust for which I am the Successor Trustee. Does the DPA or his lawyer have rights to intervene in the Trust Administration on behalf of the beneficiary?

James Edward Berge
James Edward Berge answered on Feb 20, 2021

If the DPA permits it, then yes, the DPA can make reasonable inquiries of the trustee about the trust administration. Get a copy of the DPA and read it. Look for name of principal, name of agent, effective date (some are only effective upon the incapacity of the principal, and the powers... Read more »

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1 Answer | Asked in Estate Planning and Probate for California on
Q: Petition to Determine Succession to Real Property

In CA, I remember that in order to use this the estate's value must fall below $165,250(?) and that no probate proceeding is pending/has been granted or, if it has, consent must be given by the exec/admi. of the estate.

And since a probate referee is also required for a summary... Read more »

James Edward Berge
James Edward Berge answered on Feb 19, 2021

Yes. You must prepare a petition, file it, pay the court filing fee, request the appointment of a probate referee, and pay their fee, before you can get the court order that you desire.

2 Answers | Asked in Estate Planning, Probate and Real Estate Law for California on
Q: Summary probate needed for real estate in CA?

I've been living in the same house with both my parents for 20+ years and we're all on the title to the house as TIC with each of us having 1/3 interest on the house. About 4 months ago my dad passed, leaving a Will saying that his entire interest in the house (basically his 1/3) goes to... Read more »

Nina Whitehurst
Nina Whitehurst answered on Feb 18, 2021

State inheritance laws do not dictate who is liable for loans after a borrower passes if the estate does not cover them. However, there is a federal law that prohibits lenders from calling residential mortgage loans due if a borrower passes. Of course, if the heirs don't keep making the... Read more »

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3 Answers | Asked in Estate Planning, Real Estate Law and Probate for California on
Q: In CA, what what happens to the probate fees if you, the sole beneficiary of the decedent's will, decide to waive them?

For example, In the case of a simplified probate where the decedent only had their share of the house that they shared with two other people (including the adult child) and that share were to be passed down to the adult child via Will. Since the adult child is entitled to receive that remaining... Read more »

Gerald Barry Dorfman
Gerald Barry Dorfman answered on Feb 18, 2021

An administrator or executor can waive their fees. If they do so, the estate doesn't have to pay them. The fees for court filing, publication, appraisal, etc. will still have to come from the estate. So will any attorney fees. So, if you are the sole beneficiary and are appointed executor,... Read more »

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1 Answer | Asked in Estate Planning, Contracts, Elder Law and Probate for California on
Q: I need estate lawyer to help deal with a hospital were my mom passed away

My mother passed away in a hospital. Hospital lost her property and sum of money she brought with her. As compensation they issued me daughter a check that I had problem utilizing. and lost.. It was made out to the estate of <moms name> Now they are giving me replacement check but I'm... Read more »

Nina Whitehurst
Nina Whitehurst answered on Feb 17, 2021

If your mother’s estate, consisting of that check plus her other assets, is worth less than $166,250, you might be able to collect all of her assets with a small estate affidavit. A probate attorney can help you determine whether your mother’s estate qualifies and, if so, can help you draw up... Read more »

2 Answers | Asked in Estate Planning, Real Estate Law and Probate for California on
Q: In CA, what happens to co-borrowed mortgage in the event one of the borrowers dies?

For instance, a married couple decided to borrow a mortgage together. However, some years later one of the borrowers dies. I understand that the surviving spouse takes over the payments assuming they are still financially able to, but wouldn't part of the mortgage be part of the... Read more »

Julie King
Julie King answered on Feb 17, 2021

It depends. California is a community property state so, assuming the debt is a joint debt, it's likely either spouse will be required to pay the full amount due -- but it will depend on the language in the paperwork you signed when you originally received the loan. A lawyer would have to read... Read more »

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2 Answers | Asked in Estate Planning for California on
Q: How does Step-up in basis rule apply for AB Trust if wife sells the house after husband dies?

Husband died in 11/2020. Couple had a Rev Living Trust (AB Trust). I understand all estates will get a Step-up in basis as of spouse's death date.

If wife sells the house in 2021, can she get the Step-Up in basis rule for the entire house?

Someone was saying only the 50% (B... Read more »

Sally Bergman
Sally Bergman answered on Feb 14, 2021

Any part of the house funded into the B Trust will not get a step-up in basis. Depending upon many circumstances, many people are deciding they do not want a bypass trust, and often times, it is not necessary. You should speak to a trust administration attorney for more advice as it may be... Read more »

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2 Answers | Asked in Estate Planning and Probate for California on
Q: Can I put a minor on the Transfer on Death Deed for my house IF I designate a UTMA custodian for the minor in my will?

Everything I read says minors can inherit property, they just won't be able to assume the loan, get a new loan, etc. By completing a TOD Deed for my house in my minor child's name AND having the UTMA Custodian for my minor child designated in my will, I am hoping to avoid probate and... Read more »

Frederick Lewis Stoker III
Frederick Lewis Stoker III answered on Feb 12, 2021

If your ultimate concern is that your child may still be a minor by the time the property passes, you should consider the option of establishing a trust. The trust can provide guidance as to the trustee's power to sell and duties owed to your child. Furthermore, creating a trust now can... Read more »

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1 Answer | Asked in Estate Planning and Elder Law for California on
Q: I'll try again. Small, I mean small estate. No family, friends to help me out. I'm alone. I need assistance for closing.

Will a ProBono Attorney, close my Estate after I pass. My total assets are under $14,000.00 year.

Sally Bergman
Sally Bergman answered on Feb 12, 2021

You need to take at least some minimum steps to make sure no estate administration is required. For every bank account, make sure you have designated a pay-on-death beneficiary and make sure that person knows they are the beneficiary. Following your death, that person can bring in a copy of your... Read more »

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