California Estate Planning Legal Questions

"Lodged" is not quite the same as "filing". The Probate Code requires a custodian to lodge a will of a deceased person, whether or not that custodian intends to file a petition for probate. If no probate petition is filed, it may be because all assets are in a trust. You should be able to find the name of the "lodger" (probably a lawyer) and get more info.... Read More

When a person dies, all powers of attorney they have given are voided. So you are correct you can not get a power of attorney. The estate will have to go through probate for title in your mother to pass to her heirs [by Will or Statute]. All the bank wants is for the mortgage to be paid [and perhaps to create a new loan because title has shifted so the old loan may no longer be valid if you have no assets, they will not renew the loan, if you have assets they will charge you new fees].... Read More

With a power of attorney, your relative would grant another person the authority to handle her or his finances on your relative's behalf.  Your relative would need to have the mental capacity to make this decision and would have to be doing it voluntarily.  Your relative also would retain the ability to handle her or his finances.  A power of attorney can be drafted by an attorney, and must be witnessed and/or notarized.  Estate planning attorneys do this work.  There also are generic forms online.   A conservator would be appointed by the court after a hearing and determination that your relative is no longer able to make sound financial decisions.  Your relative would be entitled to an attorney and would participate in the process.  If a conservator is appointed, your relative would no longer have the legal authority to make her or his own financial decisions.  If your relative agrees that a conservator is necessary, the process is a bit easier but the court is still involved.  Probate attorneys do this work.   If the state is involved, I would guess that your relative has diminished mental capacity and needs a conservator and maybe a guardian.  A guardian is appointed by the court to make every day decisions, such as where to live, when the court finds that a person cannot make responsible decisions for themselves.  State health and human services employees can serve as conservators and guardians in most states.  Again, guardianship requires a hearing and probate attorneys do this work.   Wills are quite different from the above issues.  Your relative would meet with an estate planning attorney to enact a Will, or could use an online form in some cases.  Again, your relative would need to have the mental capacity to understand the Will and would have to sign voluntarily, with witnesses and a notary.  Conservators and agents under a power of attorney would act for your relative while he or she is alive.  A Will is administered once he or she dies.  No one else can enact a Will for your relative, even if a conservator or guardian is appointed.  ... Read More

If I understand your question correctly, the owner of a property may transfer any portion up to and including 100% of what they own to another party. Why would they be restricted in how much they can transfer [in India, there may be such restriction to prevent farm land from being divided into such small parcels as to make it much less efficient to use to grow crops, but that would only occur by governmental order].... Read More

I cannot tell you what the trust provides without reading it, but it is common in a remarriage situation to use a trust to ensure that, regardless of the order of deaths, after the second one dies the property descends to the persons they intended. This often involves something called a "QTIP trust" coupled with a provision that makes part of the trust irrevocable (not subject to amendment) after the death of the first spouse to die. In the typical second marriage situation, part of the property ultimately passes to the children of one spouse and part to the children of the other spouse, but the variations and fractional divisions are infinite. It is only after the second spouse dies that anyone else receives anything, but there are exceptions to that, too.... Read More

In California, you may make trust distributions at any time unless the trust restricts when they can be made. Apart from that, the distributions must be fair to all beneficiaries, which is usually satisfied if each beneficiary is receiving an amount proportionate to their beneficial interest; e.g., a 50% residual beneficiary should get half of the amount to be distributed. With a large amount coming in from the sale, you should be safe distributing as proposed.... Read More

A lot depends on whether your parents were married when she died. If so, in California your dad can pursue a Spousal Property Petition to get the property in his name if it was Community Property. After that he can, by present transfer or by Will or Trust (after transferring the property into the trust), leave it to whomever he decides. Failing that, you end up as an equal owner with your siblings that either survive your father or leave surviving issue.... Read More

If he was married for only a year, most of his assets would be his separate property unless he agreed to merge all their property together [likely never occurred to them]. Any community property she already owns half and the other half would be split between you [if you are in California]. If he made a Will, his half goes to whomever he named in the Will. If it is all separate property, than the two of you split 50-50%. It sound like it will be messy figuring out what property is what. ?Try to be nice with her and see if something can be worked out [if she has no children, put the items in an irrevocable trust so you get it all on her death and she can not sell it while she is alive but gets to use it.... Read More

The buy-in is usually split among the existing partners, not put into the business. Then everyone has a fractionally smaller share to account for one more partner, and everything continues to be split according to the new fractional interests. The "consideration" for the buy-in is that each partner will now have a smaller share of profits, and the buy-in is to off-set that reduction. But its whatever you agreed. If there wasn't any agreement, you are headed for trouble.... Read More

The annual gift maximum is the amount that does not use up any of the lifetime gift tax exemption. If he still has his entire unified gift and estate tax exemption amount available, he can gift the house to you and simply file a gift tax return using up a portion of his exemption, and pay no tax. My concern with lifetime gifts is with capital gains on a subsequent sale by you. If you inherit the property you receive a free step-up in basis as of your father's death, as though you paid full fair value for it. If you turn around and sell it for that value, say $600K, you realize no gains on the sale so you pay no federal income taxes. (As for state taxes, that varies state to state). If instead of inheriting the property you receive it as a lifetime gift, your basis in the property is the same as your father's; no step up. If your dad bought it for 100K, that's your basis, and when you turn around to sell it you pay income taxes on the gains: 600K minus 100K = 500K gains ("income"). The federal taxes will probably be about 35%, or $175,000.00.... Read More

Presumptively, your wife automatically ascended to title the instant your mother-in-law passed. However, her siblings may seek to set aside the deed as the product of undue influence or having been made at a time when mom lacked legal capacity to execute it. It could be a long and messy bit of litigation.... Read More

In California you can leave your property (but not your spouse's property!) to whomever you like, even to your cat. You accomplish that by adopting a Will or a Trust, or by other arrangements with the institution holding the asset you want to go to your child; e.g., by beneficiary designation on life insurance or an IRA, or by designating the child as "pay on death" to an account.... Read More

If she owned the items and truly gave them to you for you to have permanently, you are entitled to keep them. A Will only controls what happens to assets owned a second before death, so if she gave the items to you they are yours. The problem will be convincing them, but you have possession so just do not give it up. If they sue, they have to prove it was not a gift, and who do they have who can state of their own knowledge they were present when she gave it to you and said it was not a gift.... Read More

You have problems. You need to see a local estate attorney to see what you can do. Waiting for 14 years before going after the bank account money may bar you from doing anything [except perhaps for going after the brother who hid the information from you]. Since you were not the legally adopted children of your step father, you are not entitled to collect anything from his estate.... Read More

There is some vital information you have not provided us. You made a very bad decision to put him on title, but maybe you can get out of it. ?What does you power of attorney allow you to do? Some powers are limited. I assume your grand mother was the only one listed as owner of the property before. If she would not have agreed to the transfer or not as you would have done it, perhaps you exceeded your legal authority. ?Would she have only agreed if provision was made for her to get some periodic payments? Would a title insurance company agree to guarantee title to the property? ?Is she mentally sound; parents often overlook their children's faults and will not sue them no matter what. ?if you transferred all ownership to him, then you no longer have any power over the property so can not add someone to the title now. Did he trick you in anyway so you can sue for misrepresentation or fraud? Your need to go to a local real property attorney to find out what can be done.... Read More