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California Probate Questions & Answers
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 »

2 Answers | Asked in Probate for California on
Q: Regarding Heir-at-Law can a step-son inherit the estate?

When both parents die and there is no will can the step-son inherit the estate?

James Edward Berge
James Edward Berge answered on Oct 19, 2020

In general, a stepson is not an heir at law. When someone dies without a Will (intestate), the decedent's property generally passes to a surviving spouse, if any, or children who are then living, or their issue by right of representation; but if none, , then to the parents of the decedent or... Read more »

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2 Answers | Asked in Estate Planning and Probate for California on
Q: If asset value changes between DOD and date of distribution, does it affect what beneficiaries receive as a percentage?

A former spouse named several people as beneficiaries, to receive some percentage of the value of an investment account. The executor states that the amount to be received is the value on the date of death, but the account was not terminated. If the assets increased in net value, are the... Read more »

James Edward Berge
James Edward Berge answered on Oct 19, 2020

No doubt, your answer lies in the interpretation of the language used in making the special gift, but without seeing it, I would opine that the relevant date is date of distribution rather than date of death.

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3 Answers | Asked in Estate Planning, Real Estate Law, Tax Law and Probate for California on
Q: If I inherited my father's house after he passes, and I sell it, do I get hit with capital gains tax?

My father owns a house outright in California. I am the only child, and the house is in trust to be inherited down to me. My mother passed 2 years ago. If I in turn sell the house after my dad passes, do I get hit with capital gains tax?

Sally Bergman
Sally Bergman answered on Oct 18, 2020

When your mother passed two years ago, the property received a "step-up" in basis to market value at that time. When your father dies, the property will get a second step-up in basis to the then market value. This assumes the property was community property and that the trust did not... Read more »

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1 Answer | Asked in Estate Planning and Probate for California on
Q: My sister was a solo practitioner and passed away without a succession plan. What to do with her practice now?

She was practicing family law and she has active pending cases now. Do we need an attorney to notify the court and her clients? Or can we notify the court and clients as her family member?

James Edward Berge
James Edward Berge answered on Oct 16, 2020

Call the State Bar of California and see what they recommend. If you need to probate your sister’s estate, you can also petition the probate court to appoint a lawyer as a law practice administrator to complete your sister’s cases and perhaps find a buyer for her practice.

1 Answer | Asked in Probate for California on
Q: Disabled husband admitted ICU, 7 weeks later revokes trust , new will executed 100% assets to daughters, now what?

Husband and I had a trust, he was receiving SSDI for impaired memory due to stroke. Our daughter was able to manipulate him and acquired POA medical and legal. after 7 weeks fighting pneumonia in hospital dies. The day after his death, I get a certified letter he had revoked our trust, and one... Read more »

Bill Sweeney
Bill Sweeney answered on Oct 16, 2020

I recommend you retain an attorney who can assist you in this contested matter.

1 Answer | Asked in Estate Planning and Probate for California on
Q: My mother and father had a trust. My mom died and 7 years later my dad remarried. His new wife and he drew up a trust.

He died about 10 years after and I was told (while he was alive) that in their trust he specified that I receive $350,000. I believe my two children are also named for $175,000 each. He has been gone about 2 years now and his wife will NOT talk about the trust. I do not have a copy of the trust... Read more »

Sally Bergman
Sally Bergman answered on Oct 15, 2020

I see you are in Glendale, AZ, but am assuming your father had resided in California. I'm answering your question based on California law. You have an absolute right to see a copy of the trust, even if somehow you were disinherited from it. An attorney would send a demand letter and if she... Read more »

1 Answer | Asked in Probate for California on
Q: How to get mother in law out of house after my father has passed away & his trust gave house they were living in to me?

There was an addendum to trust giving her a rental house only and everything else to me.

Shawna Murray
Shawna Murray answered on Oct 13, 2020

If the house is still in the trust, the trustee will need to give her a 60-day notice to vacate (I am assuming she has lived there for more than one year) and treat her like a tenant. If the house has already been transferred to your name, you will be the person to give her the 60-day notice to... Read more »

4 Answers | Asked in Estate Planning and Probate for California on
Q: If I'm a Mexican citizen and my mom died in CA without a will in place... can i claim her property?

My mom passed 5 years ago. I am the oldest, I have 3 half siblings that are US citizens, i am not. Mom left no will. The house was paid for. No taxes are owed.

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Oct 13, 2020

If mom died without a Will (called dying intestate) then the Probate Court has to approve the disposition of her assets. Someone has to go to the Probate Court where she died and start the proceedings. It won't matter where you live. Her assets will be divided per the law which generally... Read more »

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1 Answer | Asked in Estate Planning and Probate for California on
Q: I was asked to sign a waiver of bond when my mother passed away how does that affect me
Maurice Mandel II
Maurice Mandel II answered on Oct 9, 2020

A bond is like an insurance policy that covers the performance of certain duties by a person or company. You don't say who the bond was supposed to cover. If it was you, then you are acting as an executor without being bonded and if you do bad things, you are personally responsible. If the... Read more »

1 Answer | Asked in Probate for California on
Q: Probate attorney failed to complete Representation Agreement and dropped case. In California

We retained probate attorney had a Representation Agreement, during the process my brother starts making demands for me to pay to have the property line’s changed and to sign over my fathers house, the lawyer contacts me and tells me that if I fail to comply with my brothers demand then he can no... Read more »

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

Contact your local county bar association to see if they offer a mediation process to settle fee disputes. Or contact your state bar association to see if they have a process for handling complaints against your attorney. Or contact another probate attorney to see if there's anything that... Read more »

2 Answers | Asked in Estate Planning, Banking and Probate for California on
Q: I have a check from PayPal from a deceased relative's accounts. The check is drawn from a Wells Fargo account.

I submitted the California Small Estate Affidavit to PayPal with a notary attachment. However, the check was made out in my deceased relative's name only. Which is not how other checks have been made out.

Two banks that I do business with, including Wells Fargo, have declined to... Read more »

John B. Palley
John B. Palley answered on Oct 7, 2020

I would send it back to PayPal along with a California Small Estate Affidavit (free forms online) filled out by the person who legally is the next of kin (or beneficiary of a will if there is a will). Ask them to re-issue to the correct person or persons. Good luck.

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1 Answer | Asked in Probate for California on
Q: My mother past away when me and my brother were teenagers . Our home was taken over by her boyfriend, what can we do?

They were never legally married and she never had a will, I have documents that state he took over her home, being next of kin do we have rights to the home?

James Edward Berge
James Edward Berge answered on Oct 6, 2020

If your mom owned a home at the time of her death, and she died without a Will, that property would pass to you as her children by the laws of intestacy. If she owned a home at the time of her death and died with a Will, that property would pass to you as beneficiaries of her estate under her Will... Read more »

2 Answers | Asked in Probate for California on
Q: Im a beneficiary of a trust, and never received a copy. How do I find out who the trustee is, and how to contact.

Here's what I was told:

-All my grandmother's assets are to be split between me and my brother.

- funds are not to be available until we reach 25 or start college. (Not sure if it means I get mine at 25, or we both get it when he-the younger sibling. Turns 25)

-Her... Read more »

James Edward Berge
James Edward Berge answered on Oct 3, 2020

Trust agreements are not legally required to be filed with any state or local official, so they remain entirely private throughout their existence. The law does require a trustee to notify you of the existence of the trust, your entitlement to a copy of the trust, and a warning that any trust... Read more »

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1 Answer | Asked in Probate for California on
Q: I was in my hotel room with my girlfriend who is on probation can her probation officer search my hotel room without my

Permission?

Maurice Mandel II
Maurice Mandel II answered on Oct 1, 2020

Ever hear "Mi casa es su casa?" Well, when your girlfriend is occupying YOUR hotel room it becomes HER hotel room as well. You should contact a criminal defense attorney in your local area if you have further questions or this search resulted in an arrest.

Justia disclaimers...
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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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3 Answers | Asked in Probate for California on
Q: Brother lived/died in Ca. Had bank accts in Ca<$166k & NJ about $90K +small IRA. Is small estate w/o admin only needed?

I am only sibling, he was never married/no children. Our parents died. No will. Will I qualify for Small Estate in Ca? Will NJ honor determination? Or will I need administration? Get it here or there? Do I have to travel to NJ?

John B. Palley
John B. Palley answered on Sep 21, 2020

I would say you need to total all the accounts that don't have named beneficiaries on them and see if total is under $166,250. If so, then the small estate affidavits should work. Usually, but not always, they will work regardless of where the banks are. However, some banks will require... Read more »

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