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Samuel Bruce Ledwitz

Samuel Ledwitz’s Answers

18 total


  • Endorsing a check/forgery/power of attorney question (no personally identifiable detail...)

    I had power of attorney with signing privileges for my mother, and sold a house in 2011 for her as agent. I lived in that house for years and paid all the mortgage payments etc. - it was titled in her name because I had credit issues. I r...

    Samuel’s Answer

    It would be important to know the powers that were granted to you in the power of attorney. If it was a limited power of attorney and the powers were granted to you for a specific task, or if it were a general power of attorney with monetary limitations (the limit on the gifting), it would seem that you exceeded the powers that were granted to you by your mother. (Before any attorney could tell you an exact answer, the document has to be read first.) As such, you appear to have breached your fiduciary duty to your mother. As a result of the death of your mother, the estate can sue you to recover the money from the unauthorized transaction. It also appears your act was intentional and that could subject you to additional claims. A beneficiary of the trust could possibly raise the issue that this is possibly financial elder abuse (a possible felony). I strongly suggest that you seek legal counsel to represent you with this civil/criminal situation.

    Additionally, if you sign a document with a power of attorney, you should always indicate that you are the power of attorney. You must never "forge" a signature. This doesn't pass the smell test. I hope this is merely a homework assignment as suggested in a previous answer.

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  • I am administering a small estate using the summary procedure. Do I need an Federal ID Tax Number?

    Can't find on the internet if I need to obtain the EIN, and place all money collected in a checking accounting titled with the estate name using the EIN. Thank you.

    Samuel’s Answer

    • Selected as best answer

    If an estate is worth under $150,000 and real property does not exceed $50,000, then Section 13100 of the Probate Code permits you to administer the estate as a small estate and avoid the Court supervised process called Probate. (See section 13050 for other assets that are not included in the calculation of the estate value).
    An EIN (Employer Tax Identification Number also used for trust administrations) is not required. If you needed an EIN, then you could go on www.irs.gov and file for one by using the SS4 form. You are required to make sure the decedent's final personal tax return is filed.

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  • Can an attorney help me with obtaining property? I am a #2 executor and close friend and caregiver for the deceased.

    I would like first opportunity to obtain property from my dear friends estate. In the irrevocable trust, the son is beneficiary but cannot afford to live there. He is incompetent. The #1 executor is helping him and I feel I can be given the pri...

    Samuel’s Answer

    The Irrevocable Trust would have a distribution section in it that would state who is the beneficiary of the property. In this case it is the "incompetent" son that cannot afford to live in the property. The acting trustee may take this into consideration and sell the property if it is not feasible to distribute the property to the son. Also, there might be costs and taxes that must be paid as a result of the final illness, income tax, etc. that must be paid before the distribution of the property. If there is not enough liquid assets (such as cash) to pay these bills, then the property might be sold to pay the creditors and taxing agencies. If it were to be sold, the trustee has the fiduciary obligation to get the highest and best price for the beneficiary.

    In this case, you are merely a trustee with no right to inherit. If you wish to purchase the property, the transaction must be at "arms length"-- meaning you must bid on the property like everybody else. A trustee has the fiduciary duty to the beneficiary and not to himself (or you). The trustee has to think of the beneficiary's well being, not yours. If the property was sold to you at a low price, the beneficiary could sue the acting trustee for breach of fiduciary.

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  • Could you foresee any complications with quitclaim deed properties if one spouse dies?

    Does a quitclaim deed remove a property from being considered community property among married individuals? Is it now considered "separate property" since it was bought in only one spouse's name? Let's say a spouse died and in his legal will, na...

    Samuel’s Answer

    If community assets have been used to pay the bills, property tax, and other costs associated with the property, and the property is truly community property, and the property was never put in both spouses names (as I believe the question indicates), the surviving spouse can sue to recover his or her half of the community property that they never consented to transferring to the third party. It is possible to change the characteristic of the property (SP to CP) without changing the deed to the property. Obviously, it is subject to debate about intent.
    The mortgage is not transferable to a friend without the consent of the bank (which isn't going to happen). Therefore, the mortgage is still owed by the spouse (assuming they were a party to the loan transaction). Also, the gift of the property may accelerate the loan because the security for the loan has been given away.
    You absolutely need to consult with an attorney in your area that handles this type of matter. Also, time is of the essence.

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  • Pic want a living trust that keeps property in the bloodlines

    I do not have a husband or children of my own. I want my two sisters to share the property, upon my death and upon their death their children would inherit the property, but I do not want their spouses to have any rights to the asset

    Samuel’s Answer

    A living trust would accomplish your goals of avoiding the spouses. It would name only your sisters as the beneficiary of the property and it would avoid costly probate. It is true that at the time that your sisters inherit the property it will be their respective separate property. However, as time goes by, and they use some of their paycheck (community property) to pay taxes, upkeep, etc., the property could be transmuted into community property, or at a minimum, be subject to reimbursement to the spouses. As a result, I would recommend what is called a GST (Generation Skipping Trust) trust that would help keep the trust assets separate. It would have it's own tax ID and file a separate tax return. Your sisters would have to know not to spend community property (paycheck) on this separate asset. Your situation also presents another problem: Do your sisters get along? Do the children of the sisters get along? All too often one sister needs money and will force the sale of the property. Make sure you check with them that they actually want the property. And, even if they do, will their children be able to work together down the road? Usually, this doesn't last forever.

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  • Is there a form to lodge a pour over will when you are not going to probate an estate? Do I just hand it to the clerk?

    My mom just died with a living trust and pour-over will. I have been told that I need to lodge the will even though we are not going through probate. Is there a form I need to fill out to do that or do I just hand it to the clerk?

    Samuel’s Answer

    You are required to file the Will with the Court within 30 days of the death. In most counties there is a fee associated with the filing. Both Los Angeles and San Diego County charge $50. Most lawyers use an attorney service that can quickly file this for you.

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  • My mother and I purchased a duplex. What kind of trust agreement should we use to minimize taxes?

    We purchased as joint tenants but I don't think it was properly documented and now think a trust may make more sense. We split everything 50/50 and she lives in her unit, I rent mine out. We would both like to designate successor trustees so I ch...

    Samuel’s Answer

    Based on your fact pattern I would recommend that you and your mother each create a trust and name each other the beneficiary of the other's 50%. There are two problems with joint tenancy. One is that at the second death there would be a probate and, two, if one of you became incapacitated there would be no way to act on the other's behalf (assuming there is no DPA). As far as taxes go: At the death of your mother, her half would get a full step-up in basis under the IRC 1014(b)(6). You half would remain the same. As for property tax, you would keep the same property tax that your mother had under proposition 58 (assuming that this is a primary house or a secondary property with an assessed value under $1,000,000.). As long as your mother's estate, at the time of her death, is under $5,250,000 (2013) or $5,340,000 (2014) there would be no estate tax. California has a state constitution prohibition against inheritance tax as well.
    At the time of your mother's death, you would only need to file an affidavit of death, along with a Preliminary Change of Ownership Report, Death of a Real Property Owner, and a Proposition 58 form. As always, this is general advice, and there may be other factors that would alter this advice. I strongly urge you to consult an attorney in your area to get specific advice on trusts, tax, and other applicable laws.

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  • Can a Heggstad petition start a trust or must it already exist?

    a bank cannot set up a trust without assets and the bank needs the trustor's signature. if all i have is a document entitled My Name Living Trust, how can that be considered a trust? what if there isnt a trust established with any bank, how ...

    Samuel’s Answer

    • Selected as best answer

    A living trust is much like an empty container when it is first created. Typically, right after the signing of the trust, the client is instructed to go down to the bank and put the account in the name of the trust (this places the account in the container) (an asset such as a house will be put into the trust by a quitclaim deed prepared by an attorney). The bank will ask the client to fill out a trust certification (who is the trustee, the name of the trust, is the trust revocable, etc.). It's important to note that the mere creation of a trust does not place the assets in the trust.

    Normally, when a trust is created, a schedule of assets are listed with the trust. This shows that the client has the intent to transfer these assets into the trust. The case of Heggstad specifically dealt with a situation where the client never put the account in the trust before he died, but the court determined that while the client was alive that he had the intent to do so. The court ruled that because of the intent that the asset is in the trust. Heggstad motions are not automatic and the judge has the ability to approve or deny them as he sees fit. They are filed at the death of the living trust's trustor (creator). There are also attorney fees involved.

    My advice is to always fund a trust properly and not have to file a Heggstad when the trustor dies. Heggstad and probate (would occur if the Heggstad is denied) are costly and can be avoided by properly funding a trust.

    Recap: Creating a living trust and funding a living trust are two different matters. Look at this way: first you get a coffee mug (living trust) and then you put the coffee in it (fund the trust).

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  • Does a house have to be sold before exeuctors job is complete

    one lawyer says she could sighn over trust after affidavit had been filed,now she has alist o bills very small, she cant do it till that is settled?

    Samuel’s Answer

    There is some important missing information in your question. The word executor refers to a will (the person in charge of a will is called an executor (if male) or an executrix (if female). The word "trustee" refers to a living trust. The person in charge of a trust is called a trustee (can be either male or female). If there were neither a will or a trust the person in charge would be called a personal representative.

    I will assume for your question that you are dealing with a properly funded living trust. In this case, the house could be distributed before the end of the adminstration if the trustee is 100% sure that there are enough assets to cover any remaining bills or taxes and that the distribution does not unfairly favor one beneficiary over another. However, in normal practice, an attorney tells his client to be very cautious and not to distribute the assets until the end-- the reason is that if the trustee distributes all the assets, and then a surprise bill (medical bill that insurance coverage denies for instance) or taxes come up (such as an unpaid income tax bill from many years ago), and the beneficiary isn't able to give back the asset (may have spent all the money) then the trustee is personally liable (has to pay out of his own pocket). Trustees do not like to have exposure of this nature and accordingly follow the lawyer's advice of not distributing a large asset before the end of the administration.

    The answer to your question is very fact specific. Things like 1) how many beneficiaries exist 2) the size of the estate, 3) value of the house, 4) wording of the trust, 5) any lawsuits 6) any unpaid taxes 7) etc. could have a major impact on the administration of the estate. Please consult an attorney to discuss your rights as a beneficiary.

    The trustee, under the California Probate Code, must provide you an accounting and keep you informed throughout the process.

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  • My father just pased he hand a will and a trust prepard by a attorny but the attorny did not list none of his property & now

    wants to charges use 5,000 to list the propety and all his assetes can he do this

    Samuel’s Answer

    When a living trust is created, the assets should be placed in the name of the trust (there are some exceptions for retirement accounts (IRA/401K) and annuities--income tax reasons). Usually, an attorney will have a schedule of assets that list the client's assets that are to be placed in trust. Also, the attorney will typically prepare the deed for the house, known as a quitclaim deed, that transfers the title of the house to the trust. This is sent to the recorders office with a PCOR that explains to the assessor not to increase the property tax.

    At the same time a Trust is prepared, a pour-over will is created. This will is for assets that should have been placed in the trust, but for some reason, never got into the trust that exceed $100,000 in total assets. Things like life insurance or IRA/401ks have beneficiary designations and usually avoid probate.

    If assets should have been placed in a trust but weren't, and there is a schedule of assets with the trust document, an attorney can file what is called a Heggstad petition. It's asking the court to respect the intent of the person that created the trust. Why would he create a trust and not put the assets in trust.

    The trust is designed to avoid costly probate and as such is a great device. You will need the help of an attorney at this point. When someone dies, no matter if the estate planning is done perfect, there is always work that needs to be done such as an affidavit of death for the real property, notifying the beneficiaries, taking care of the finances, filing income tax returns, etc.

    Please seek the help of an experienced attorney. Also, your question was vague and my answer is only a general outline of possible issues.

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