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Gerard William O'Brien
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Gerard O'Brien’s Answers

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  • My 17+ year old daughter is named in a trust from my mother. My ex-wife wants to sue the trust. What are my daughters rights?

    My mother's will explicitly disinherited my ex-wife and set up a small trust ($25K) for my daughters (17 1/2, 15) they will get when they are 21. My ex who has legal custody is threatening to sue the trust. Nothing has been filed yet. AFAIK the su...

    Gerard’s Answer

    Your daughter might ask Mom why she wants to waste her money on lawyers. Twenty five thousand dollars isn't enough to support a lawsuit. If your wife files and the trustee defends he has to hire a lawyer and that will brun through the money. I would let the ex know she isn't hurting you she is hurting her daughters. Once your daughter is 21 she can terminate the trust by asking for a complete distribution. Yes the trustee has an obligation once she is 18 years old to let her know what is going on because it is going to affect her distribution.

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  • Do probate notes reflect if the matters have been cleared?

    The executor was ordered to submit further documentation to the court through probate notes and file and serve re Rule 4.4 (b). I have not been served with anything and the hearing is tomorrow. If these documents had been submitted with the cou...

    Gerard’s Answer

    You should be able to get anything that is filed if you are on the service list. Call the attys. office and find out if they served and if they will give you via fax or email a copy of what if anything has been filed. If it hasn't been done the hearing will more than likely be continued and possibly the judge will set an order to show cause why the notes have not been cleared. You may benefit from a visit to a lawyer, see the Find a lawyer tab above

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  • The decedent has no assets in California, but got an inheritance in Paris and the estimated value is $60,000. The Notaire in

    Paris asking me, the executor of a Will, to get an "Grant of Probate" from the LA Superior Court and send it to her. How do I apply for the Grant of Probate in LA Superior Court?

    Gerard’s Answer

    Was the decedent domiciled in California? Is the inheritance in Paris being held by the Nortaire? It's hard to tell from your fact patern. However is the Natory in Paris will be able to release the sixty thousand dollars to you as the excecutor upon provision of the letters testamentary (That is what I think she is talking about) you may have to file a probate petition to obtain the letters testamentary. It would probably be good to discuss with her if she speaks English or you speak French exactly what she needs.
    California has a small estate law which allows you to transfer up to $150,000.00 without opening probate, for many reasons I do not think this will work but I would want to find out as it is much less exepansive than opening a Probate.
    Good luck

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  • I have a corporation in California I owe tax money on it I want to start a new company in a different industry in a different

    State will I get in trouble for it. I use to do travel but I don't do that anymore and I want to start an elecrtronic company in delaware

    Gerard’s Answer

    Corporations being separate people have a life and debts different than your own. If it is merely the entity level tax that you owe you will have no problem. If you collected taxes such as the trust fund tax by withholding taxes from employees, or collecting and failing to deposit sales tax, that could become a problem down the road and if those were the taxes I would enter into an agreement with the taxing authority, either the IRS or the BOE. Also I would use an attorney to do so. But if it is just the $800.00 minimum tax you have nothing to worry about.

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  • California Close Corp in FTB Suspended Status. Should I walk away? Can I?

    I have a California corporation that is currently under "FTB Suspended" status. We filed the final return and dissolution notice with the SOS but apparently did not do so with the FTB (hence the status). We filed for incorporation April 2012 and f...

    Gerard’s Answer

    I agree with my colleague's response. Let this corporation drift off into oblivion.

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  • At what stage, of conservatorshipProceedings, would theCourt order a mental evaluation to determine incapacity of FA.?

    I am considering filing for conservatorship of my fathers estate! He has been physically&emotionally abused by my brother & financially exploited to. He is unable due to mental problems & medical problems to protectHimself from undue influence of...

    Gerard’s Answer

    My suggestion is to file asap to end the abuse. The court can order a HAPS evaluation. In orange County they will Use UCI medical center. This is something that I have dealt with.

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  • California LLC Tax

    I read that a California LLC must pay the LLC Tax 3-1/2 months after its formation. If I create the LLC on September 30, 2015, the LLC Tax due date is around January 10, 2016? Is this correct? After I pay the $800 then, do I have to pay t...

    Gerard’s Answer

    Paying the formation amount has to be within 3 and 1/2 months so before january 10, 2016 would do it. and yes you need to pay the 2016 by april 15, 2016. Since this is an entity your personal tax delinquency will not effect it; yet. If it is a single member LLC it is a disregarded entity for tax purposes so eventually unpaid personal tax could be a problem, so my advice would be to set up a payment plan with the state and the Feds, when and if you develop a tax problem. If you are required to pay sales tax pay that when due, the Board of Equalization can be pretty hard to work with. If you are withholding taxes for employees, "Trust fud Taxes, pay those because the IRS will look at it like you have taken their money, which you will have. Your own personal income tax is the easiest to work with, but my advice is pay that as you go.

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  • Do California Probate Sales (auction or otherwise) have California State Sales Tax?

    My question is not about Estate Taxes but specifically about standard Sales Tax like what you would have in a business that sells goods. The estate in question has no business. The question is merely about the assets being sold for the purposes of...

    Gerard’s Answer

    There are a number of issues to consider as to whether you will owe taxes, they deal with basis of the property sold, number of sales, types of property sold, etc. You may find some specific answers on the State Board of equalization web site, I would look under sales by Executors, occassional sales, basis of property. It would be in your best interest to speak witha probate attorney prior to your sale, you can find a good local attorney underr the Find a Lawyer Tab above; and perhaps an estate sale expert. Good Luck.

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  • Is a trust valid if one of the creator's was mentally impaired?

    My mom and dad made a trust back in 2006 that gave everything to their children. In 2010 my mom had dementia and my dad, and his girlfriend, convinced my mom to create a trust restatement where everything was given to my dad's girlfriend. My mom...

    Gerard’s Answer

    I would hire an attorney right away. Filing a probate action may be the best thing to do, but first get a local probate attorney and get that attorney's opinion. Filing the case should at least prevent all of the assets from being liquidated before a determination can be made as to who should rightfully get them. It could turn out that the new wife prevails, but if you do take action to get a valid determination she will prevail. You definitely need a good probate lawyer for this and you can find one in Fresno by looking under the find a lawyer tab at the top of this page. Act quickly.

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  • Under CA probate law, after a named successor trustee is removed by the court which then appoints an individual not named in the

    trust (in this case, also a beneficiary) to serve as the court appointed successor trustee, which specific probate codes must be followed for this person to begin acting in the capacity of trustee? Do the same rules of appointment apply to truste...

    Gerard’s Answer

    Normally there would be a minute order issued by the court and the attorney who prevailed on the motion to remove would if he chose to write an order for the court to sign. The trustee's duties would be contained in the Trust document itself.

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