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California Estate Planning Questions & Answers
1 Answer | Asked in Estate Planning and Probate for California on
Q: Barefoot vs Jennings. What is this proving?
Julie King
Julie King answered on May 16, 2021

The case relates to who is allowed to bring a claim in Probate Court to challenge the validity of a trust or trust amendment.

As a quick background, the law only allows certain people to sue for certain things. For example, If a lady loans her lawnmower to her neighbor and the neighbor...
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3 Answers | Asked in Estate Planning for California on
Q: Is it better to choose an estate lawyer who is located in or near the county where parent died?

...because they know how things work in that county, they know county staff if document issues arise, and their travel fees will be lower?

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on May 9, 2021

Do you mean to do the Probate, or to do the planning?

For Probate, then yes local will be best.

For estate planning, find someone you are comfortable with. Location won't matter.

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2 Answers | Asked in Estate Planning for California on
Q: My mother died and I am her sole beneficiary in a trust. Is it more beneficial to leave trust intact with EIN or not?

My mother recently passed away and I am her sole beneficiary in a revocable trust (which is now an irrevocable trust on her passing). The trust contains two CDs and an annuity. When the trust was made, the lawyer that made it advised me to close these accounts and re-open them in accounts in my... Read more »

Jonathan Purcell
Jonathan Purcell answered on May 8, 2021

Consider:

1. Estate income tax uses a different type of accounting than personal income tax.

2. Transferring your trust assets to your personal ownership will collapse your tax return obligations into one personal income return with which you are already mostly familiar....
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2 Answers | Asked in Estate Planning for California on
Q: What is the California law code for 45-2-513, NM 1978 (the New Mexico code?
Jackie Marie Howard
Jackie Marie Howard answered on May 8, 2021

Probate Code section 6132.

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3 Answers | Asked in Estate Planning for California on
Q: Is it legal to replace a trustee on a living trust without using an attorney?
Jackie Marie Howard
Jackie Marie Howard answered on Apr 28, 2021

You can amend a living trust without using an attorney. However, it can be wise to seek counsel in order to make sure the change is done correctly and doesn't have any unintended consequences to your plan.

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4 Answers | Asked in Estate Planning for California on
Q: Can my husband & I make changes to our living trust without using a lawyer, if our signatures are notarized? Thank you.
Carol A Fauerbach
Carol A Fauerbach answered on Apr 28, 2021

Although you and your husband can make changes to your trust, it is important to review the changes with an attorney to make sure that there are no unintended consequences, and to make sure that the changes are done in a manner that makes them legally effective and not likely to cause confusion or... Read more »

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1 Answer | Asked in Estate Planning, Personal Injury, Elder Law and Wrongful Death for California on
Q: Can attorney for deceased mother be relieved by (uninvolved) uncle if daughter refuses release him?

Attorney for mother who suffered abuse and injury that led to death requested that court relieve him from duty and was denied. The daughter who brought the case refuses to release him. Attorney then contacted the uncle and something was discussed. We were just informed by attorney that he... Read more »

Nina Whitehurst
Nina Whitehurst answered on Apr 26, 2021

Why would you want an attorney to continue to work for you or your mother despite that attorney clearly wishing to resign? How zealous do you think that attorney will be for your cause if you are forcing him to perform against his will? Slavery comes to mind.

2 Answers | Asked in Estate Planning for California on
Q: Brother is dad's executor. Won't send Trust or Will copies. Can attorney who wrote them (not involved now) send them?

Dad passed away recently.

Jackie Marie Howard
Jackie Marie Howard answered on Apr 25, 2021

My condolences for your loss. Under California law, the Successor Trustee is required to send the heirs and trust beneficiaries a copy within 60 days of the trust becoming irrevocable (i.e. the death of the creator of the living trust). Seek counsel if your brother won't comply. Sometimes... Read more »

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2 Answers | Asked in Estate Planning for California on
Q: What is the time limit for an estate administrator to send a deceased person's Will to the adult children in CA?

No special circumstances that might cause a delay.

James Edward Berge
James Edward Berge answered on Apr 21, 2021

If the estate administrator has not yet filed a petition for probate, there's no requirement to send a copy of the Will to anyone, including the children. If anyone is in possession of an original Will, there is however a requirement to lodge (file) that original Will with the probate court... Read more »

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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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4 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 »

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