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Brian Michael Malloy

Brian Malloy’s Answers

104 total


  • Will & Trust, are Power of Attorney and Will enforceable if the person(s) is unaware of the docs they are signing?

    My uncle's daughter went to his parents' home and took all Will and Trust documents to an attorney and had it revised so that the daughter is the sole beneficiary. The original documents had my uncle and his daughter listed as the beneficiaries. ...

    Brian’s Answer

    In California,to sign estate planning documents, the person executing the documents must have at least testamentary capacity (wills) and legal capacity for other documents (trusts and powers of attorney, deeds, etc.). If you feel the elderly couple is being taken advantage of, you can contact adult protective services. Further, estate planning documents are frequently challenged in court on the basis of undue influence, fraud, incapacity, etc. If there is proof the documents were signed as a result of undue influence, fraud, incapacity, etc., the documents can be deemed void. Speak with a trusts and estates attorney in your area.

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  • If one of the benes on a TOD account dies prior to owner, owner did not rename a new bene. What happens to his bene's portion?

    Does deceased bene's portion go to his estate or split among other primary benes. No contingents named.

    Brian’s Answer

    TOD accounts usually have a primary beneficiary designation and a secondary beneficiary designation. If the primary beneficiary predeceases the owner, then the owner dies, the proceeds of that asset will go to the secondary beneficiary. Here, it sounds like the asset will pass to the secondary beneficiary, or if none listed, to the owner's estate. Speak with a trusts and estates attorney in your area to better assist you.

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  • MY MOTHER LEFT HER PROPERTY TO MYSELF AND THREE SIBLINGS. I WANT TO BUY THEM OUT. CAN WE AVOID PROBATE AND JUST DO A QUIT DEED?

    THE WILL STATES IT IS TO BE SOLD AT WHAT OLDEST (EXECUTOR) SEES AS FAIR MARKET VALUE. WE HAVE ALL AGREED ON A PRICE. THERE WAS ABSOLUTLEY NO DEBT LEFT OR ANYTHING OWED ON THE PROPERTY. DOES THE PROPERTY HAVE TO BE TRANSFERED INTO ALL FOUR NAMES FI...

    Brian’s Answer

    If title to the home is in your mother's name, you will likely have to go through probate proceedings. During the probate proceedings, you can either sell the home and distribute cash to the beneficiaries or deed the house to the beneficiaries. Speak with a trusts and estates attorney in your area.

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  • How can I use the funds in my mom's account to pay for burial expenses?

    My mom passed away on 9/3/2012. I was power of attorney for her and her account is a trust account and I believe I am the beneficiary. She was on Medi-Cal and Medicare. Will I be able to use those funds to pay for her final experiences and pay off...

    Brian’s Answer

    I am very sorry for your loss. If your mother had a revocable living trust, please review the document. It should very likely state that all of her last illness expenses, including funeral costs are to be paid from her trust estate first, then payments to creditors and then to beneficiaries. Have you notified the California Department of Health and Human Services? If not, please do so and they will tell you how much is due, if anything. Contact a trusts and estates attorney in your area to assist you in administering your mother's estate.

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  • I am the living child of the deceased. The Trustee of my mothers will is not related nor is a benificiary. I live out of state

    i live in wa. and my mother lived in ca. i am a benificiary and I have some concerns RE: my mothers belongings. The Trustee who is not related, and was my moms house cleaner gets angry with me when i bring up going down there. I feel she is hid...

    Brian’s Answer

    The trustee must act in the best interest of all the beneficiaries. If there is any fraud, self-dealing, theft, etc., the trustee has committed a breach of trust. Make a formal demand for a trust accounting from your mother's date of death to the present. If the trustee fails or you feel the accounting is inaccurate, contact a trusts & estates attorney in the county in which the trustee resides. You may have to petition the court to review the acts of the trustee under probate code 17200.

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  • Can a probate administrator force a heir to move from the family home before the sell of the property

    the administrator has stated that if I drag my feet in any way she will have me removed from the property

    Brian’s Answer

    You bet! Serve the required notice to vacate and hopefully the person will vacate without having to file an unlawful detainer action.

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  • How do I go about getting Power of Attorney for my 88 yr. old mother?

    Please send any info to: Tanna Lund. E-mail: sierra2@sti.net Thank You!

    Brian’s Answer

    If mom is competent, she should see a trusts & estates attorney (many attorneys make house calls as well if mom is immobile). It could be that mom may need more than just a power of attorney.

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  • My Daughter went to live with her Dad last year, she was 18 years old. He and his Wife made her sign a power of attorney giving

    giving them control over her medical care,bank accounts and if she were injured I have no say so in her care. She is now back with me and I want to know how to get this removed. Thank you Tracy West

    Brian’s Answer

    Since your daughter is 18, she is an adult, and only she can revoke the power of attorney and execute a new one if she so chooses.

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  • My deceased husband set up a living trust for me. when we got married.

    It was a living trust and now is a revacable trust. In it it says I cannot remarry , if I do I forfiet my trust. It has been 3 yrs and I have met a very nice older gentleman and we want to get married. The problem is, he makes about $25000 or ...

    Brian’s Answer

    From what I recall in law school, this type of provision does not violate public policy and will likely be held valid. You can always try to have it deemed unenforceable, however, be careful if the trust contains a no contest clause. Contact a trusts and estates attorney in your area to discuss your options.

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  • Father passed....no wife....what happens to his estate?

    One child has taken over...and says is his...not oldest...

    Brian’s Answer

    Dad's estate passes to each child in equal shares. If dad owned a house or otherwise had assets over $150k, his estate needs to be probated. Speak to a trusts & estates attorney in your area.

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