California Trusts Legal Questions

If they are asking for letters testamentary then the house is probably not properly "in" the trust. You might be better off to just walk away!? I would talk to an attorney about your whole case to decide what's best. If you do decide to go through with getting letters testamentary you would file in the probate court of the county where they lived. You might qualify for a Heggstad petition also so look into that as an option. Good luck.  -John... Read More

The power of attorney lapsed when your father died.  It has no bearing on what happens after your father's death.  The successor trustee (assuming your dad was trustee of his trust while he was alive) is required to give you a copy of the trust if you ask for it; you say he has done that.  Unless you believe the agent under your father's power of attorney exceeded his or her authority (during your father's lifetime), there is nothing to be gained by viewing the document.... Read More

It is your trust - YOU decide what is best.  It is common for there to be co-trustees, and it is also common for a parent to choose one child - the one the parent believes has greater ability to manage financial matters - as sole trustee.  That sole trustee can select what items each beneficiary receives, unless the trust specifies that specific items are to go to specific beneficiaries.  What is not common is for a successor trustee to have the power to change the value of the benefit being received by each beneficiary, or when a beneficiary is to receive his or her distribution.  Say you wish for both chldren to receive the same percentage value of the trust....  The trustee may select a number of items valued at 50% of the whole value and distribute those to one beneficiary and the rest of the estate will be distributed to the other beneficiary.... Read More

Each asset has different rules. Generally for banks, stocks, mutual funds and similar assets you would contact your financial planner or financial institution. You would provide them information about the trust (name, date, trustees, etc...) and they would update their records to reflect trust ownership.  For real estate, including timeshares, you would record deeds with the county to transfer them into the trust.  For life insurance you likely want to make the trust the primary beneficiary.  IRAs and other retirement accounts is a loaded question. There can be negative ramifications with naming your trust as a beneficiary so it's really important to go over those options with your attorney or your financial planner.  Remember failure to properly fund a trust can leave a big mess for your loved ones so get it done right!  Best of luck with a complete trust funding!  -John... Read More

It is a good idea to file an "affidavit of death of trustee" with the county, with original death certificate attached, to take dad's name off the house.  As long as the home is properly titled in the trust you should have no problem selling it in the future. You might talk to an estate planning attorney as it might make sense for mom to appoint you both as co-trustees with her to help her with her financial affairs!? Good luck. -John... Read More

A reverse mortgage is just a type of a mortgage so YES you can still donate to a church, other organization, or give to an individual. I encourage you to talk to an estate planning attorney as often having a living trust in place will be beneficial to the group/person you want to benefit after death. Plus a living trust sets up control of your house should you become incapacitated.  Good luck. -John... Read More

In my opinion you have to look at the facts of the case to know what's right. I figure it costs about $1,000 a year to have an LLC in California. There are some creditor protection benefits. However, depending on how much rent is coming in that $1,000 a year can really cut into your rental profits. I would rather have a good general partnership agreement and the best insurance you can get. I encourage you to explore your options with an attorney.... Read More

My question is why use an LLC?  Yes there are some creditor protection advantages to an LLC but you will also spend $1,000 a year to have an LLC. I don't think this is wise for most "family homes."  A general partnership would allow many of the same operational control options but without the annual fee. I encourage you to talk to your estate planning attorney about this. If you can't get rid of the LLC then yes your member interest should be put into your trust.  -John... Read More

You probably will need to file a petition, in probate court, to remove that trustee. However, you should talk to an experienced probate attorney as you never want to file a petition in Court without first making sure it will not be a "contest." Filing a petition that is a contest can backfire on you! Good luck!  -John... Read More

I am sorry for your loss. Assuming the home is not in a trust you will need to go to probate court to clear title to the property. This will get it in a position that you can sell it. There are time limits with reverse mortgages so act quickly. You likely want to hire an experienced probate attorney to make the process go smoothly. Also, you should notify the reverse mortgage company that you might like to buy the property and/or are trying to sell it and ask them for an extension of time to deal with the mortgage.  They will grant up to two 90 day extensions if you ask in a timely fashion. Good luck.  -John... Read More

Technically you are supposed to send the creditors notice to all known or reasonably ascertainable creditors. That would, of course, include the mortgage company. However, since you know they will be paid in full next week I probably wouldn't worry too much about it. Having said that, it's a pretty simple form so if you want to be fully accurate in your job you might send it to them! Your attorney should take care of it for you.  Good luck. -John... Read More

A trust is not a document that you should prepare on your own using a form.  There are a number of issues in a trust, even a simple one, that a lay person will need to have explained so that you can make informed decisions. If you have a house that is paid off it makes sense for you to spend a little bit of money to ensure that your trust is properly drafted.  Trusts are relatively inexpensive. Our firm typically prepares basic trusts for approximately $1,250. Jon... Read More

How "permanent" do you think the federal government made this "permanent" change? I do not know the answer but my feeling is cautious optimism. Thus I like to keep at least a disclaimer bypass trust for many clients. Additionally, most second marriage or "his kids/her kids" situations still need a bypass trust to protect their kids.... Read More

Each case and each attorney are different. However, I would think the majority of attorneys would want some kind of retainer in a trust matter as you describe. Again, though, each case is unique. You might contact a couple of experienced probate attorneys in your area. Maybe you can find one who would take the case without retainer. It is certainly possible.  Good luck.  -John... Read More