Janet Rae Montgomery's Answers

Beneficiaries cannot be found

Simplest: Open a probate in the local county and deposit 3/4ths of the trust estate: this may not have the most beneficial result for your family. Otherwise, hire an heir finder and give them the information. If a family line has died out then this may enhance the other shares. As for a beneficiary who will not cooperate, advise them you will hold their share, open a savings account and be prepared to K-1 them every year but not give them the money to pay taxes unless/until they give...

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As administrator, can I withdraw funds from the estate account for personal use and return them before probate closes

ABSOLUTELY NOT -- while you state that there are no other beneficiaries so it may seem harmless it is a violation of your fiduciary duties. Your attorney doesn't exactly sound like YOUR attorney. Why does the estate need to remain open? Taxes? Creditors? Disappointed claimants (disinherited heirs, etc.) The appropriate way to make a distribution to you is (1) as fiduciary fees (income to you and taxable) OR (2) a partial distribution (largely of principal with less adverse. There is no...

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Am I the executor or not?

If the amount (total, including car, etc.) passing is less than $100,000 you can use a small estate affidavit which requires you to attach a copy of the will and to state that you are nominated executor. You are not an executor unless a judge appoints you. The small estate affidavit is designed to handle this type of issue and you do not need to open a probate and be appointed to handle this. Do you have an attorney? Because this question and the potential trust administration issues...

My father had my name and his on his bank account. He died in Nov. of 2010. Is the account mine or part of his estate?

The account is yours assuming it is in joint tenancy. You also have a claim against his estate for the burial and headstone expenses (just for him, but honestly, it's the same). File the claim immediately. Time is about to run out. The county clerk's office will have a probate claim form for you to complete. Who is the executor, they too have to be notified. Short answer: you do not have to use your money to pay things (like funeral) the estate is supposed to, and your claim is a...

My father died intestate with only a car as asset, but significant debt. Must I probate? Must I file to be an administrator?

There is a procedure (in both Illinois and California) called a small estate affidavit that you can use to pass title to the car. The order of debts in California is: administration (including funeral, clearing out apartment if you have receipts but NOT for your time -- too risky and subject to complaints) taxes (IRS) then credit card companies, etc. (there are other categories, just not relevant here). So, yes, collect the car title with the small estate affidavit (see DMV site...

My brother is the executor of my fathers estate,he refuses to give us the cash account can i have my right fully reserve in this

Well, if your brother is the executor, then he has been appointed by the Probate Court in Cook County (assuming your father died in Chicago). The Court is the place to take your complaints and problems. The attorney who filed the court documents is also someone who should be looking out for your interests as your brother owes you a fiduciary duty. If in fact he has "taken the property at below market value" -- what do you mean, transferred it to his own name without adequately paying the...

California Trust Law - Revocation of Trustee's Resignation

It depends what the trust says. Usually a trust says a trustee only has authority while s/he is acting as trustee. However, some trusts let trustees move in and out. I believe there are cases going both ways and they are highly dependent on the facts and terms of the trust.

I'm trustee of my father's estate, he recently passed but the Conservator won't transfer assets to me.

Don't think so -- get a lawyer. Only thing she can do is wind up the conservatorship and give the assets to the persons named in the will (probably the trust). Don't sign anything. Again, get a lawyer who can go to court locally for you. Nobody becomes a trustee "automatically" unless the trust instrument says so.

Under California Law, Are The Heirs Entitled To A Copy Of Trust Documents When The Trustors Are Deceased?

If the heirs are also beneficiaries of the trust, then the answer is yes, they can see those parts of the trust that concern them, and may be entitled to see the whole thing. Contact your sister's lawyer directly to ask that you get a copy. If she doesn't have a lawyer, tell your sister you (and all the siblings) want a copy and will get their own lawyer (collectively it is hoped) if one is not forthcoming. There is tax work to be done (filing final income tax returns for your parents and...

I'm a beneficiary and the Trustee for my father's estate, is this a conflict of interests?

1) There is technically a conflict in both acting as trustee and being a beneficiary, but the terms of most trusts (and the laws of most states) waive that conflict. 2) Many banks or brokerage houses will ask for "letters of office" before they will accept your directions as sole successor trustee. This is a probate concept that has no place in a trust administration -- probate courts issue letters of office in administering a will. However, to keep such third parties happy, it is our...