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Kendall A VanConas

Kendall VanConas’s Answers

22 total

  • I need to create a living trust but wondering if I can do it through legalzoom.com or if you do not recommend it.

    Need a living trust and we are not high on funds right now to create one. There is a person in the law field, not a lawyer though who said he will make one for 500$, is that sketchy? Would legalzoom.com be better? Or would you not even recommend...

    Kendall’s Answer

    Well, this may not be the most unbiased forum to pose this question. Although there are many things in the law that a layperson can handle, making a trust -- or doing any estate planning really -- is not one of them. Things that can seem unimportant can often have many layers of consequences, and only an experienced attorney can help you uncover those.

    If a full-blown trust isn't in the budget right now, I'd suggest doing a simpler plan. Make some wills and powers of attorney, so if something happens before you can get the trust done, you won't be left with no instructions in place.

    Good Luck,

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  • Can a trustee appoint a co-trustee even though the trust does not expressly authorize it?

    Husband died and wife is sole trustee. Wife is getting old and wants daughter to serve as co-trustee with her. Trust does not specifically allow appointment of co-trustee. Can wife appoint daughter as co-trustee without having to go to court?

    Kendall’s Answer

    The first place to look is the trust document itself . . . if the daughter is named as successor behind Mom, Mom can simply resign and it will put daughter in as trustee automatically. Presumably, Mom is also the sole beneficiary, and in that capacity, has the power to name whomever she wants as trustee. In either of those cases, it shouldn't require you to go to court, but you should get some legal assistance in putting the correct documents together.

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  • I was a beneficiary in my grandmother's trust. I was not mailed any documents in a probate proceeding. Were my rights violated?

    As a result of not knowing about the proceeding I lost my chance to address significant problems. Do I have a claim against the trustee who mailed to others who were not beneficiaries, and did not mail to me?

    Kendall’s Answer

    If you are indeed named as a beneficiary in a Trust, the Trustee is required to give you notice of the trust administration -- advising you of their service as trustee, and where you can write to get a copy of the trust. If you weren't given that notice, no clock has started to run yet on your ability to make any claim against the Trust or the Trustee. If your grandmother didn't actually leave a Trust, your rights will differ.

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  • Order of documents for probate attachments

    I do not have an attorney and the local Legal-Aid refused my case because they are overloaded. So I'm having to file probate of my fathers will DIY-style :/ I went and filed everything today and the clerks were very particular that I put my attach...

    Kendall’s Answer

    The easiest thing to do is to attach them in the order they are listed in the petition form -- if items 3 and 8 each needs an attachment, make them attachment 3 and 8, and put them in that order. There is no special rule that applies there, and I think you just ran across a very particular clerk.

    Good Luck

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  • My Husband passed away, as his Wife do I have right to his personal belongings including his purchases before our marriage?

    We met in 2004. Married in 2005 in Texas. We moved to California March 2006 He passed in July 2006. I was pregnant at the time he passed and we have a son who is now 6 years of age. We were planned for a change of our current residence at that tim...

    Kendall’s Answer

    You didn't say whether or not your husband had any estate planning in place at the time of his death, or whether the two of you entered into any kind of pre-marital agreement. If neither of those things were in place, and he died as a resident of California, the distribution of his estate is governed by "default" probate laws of inheritance

    Assuming that all the items in storage were his before you married, as the surviving spouse, you should be entitled to 1/2 of the value of those items. His mother would be entitled to the other 1/2 as his surviving parent. However, if there are any community property items in there (items acquired after you married), you are entitled to all of that; only the separate property items are subject to the 50/50 split.

    Again, this could vary depending upon whether or not he had any papers that direct distribution of the estate upon his death. I also haven't considered whether or not his unborn child qualifies as "issue" for the purposes of inheritance -- if so, the 1/2 that would go to your husband's mother would go to your son.

    If the value of the items is fairly modest, I would try to work out an arrangement with her and come to agreement on what she wants -- it may be that there are simply items of sentimental value and she wants something to remember him by. In that case, it wouldn't be worth the legal fees to fight with her about it, and might be worth it so that your son would have some chance of having a relationship with his grandmother in the future.

    You also need to know that the value also determines what procedure you will need to follow to get legal title to the items -- if the value exceeds $150,000, you will need to put them through probate. If the value is less, other alternatives exist.

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  • Can my brothers and I cash our checks from my grandfather's estate if we will later dispute the amount?

    My grandfather had a living trust with my uncle as the trustee. My uncle gave us all our checks after the sale of my grandfather's home. He provided a ledger of expenses. He charged 20% for trustees fees and elder care. He listed expenses that we...

    Kendall’s Answer

    In order for a to properly carry out all his/her duties as trustee after death, there is a fairly long laundry list of things that need to be taken care of -- notice to certain people/entities, accountings and reports, inventorying of assets -- and many, many others. Beyond this, it goes without saying that a trustee must act within the confines of the trust document, which will set out the trustee fees to be paid, the beneficiaries under the Trust, and other powers and duties that the Trustee must abide by.

    If what you report is accurate, your uncle acted outside the scope of his duty as trustee, and is in breach of his fiduciary duty as trustee. As beneficiaries of the Trust, you and your brothers have standing to dispute any number of things he has done, and your acceptance of the check he has given you should not be an impediment to pursuing those claims, if you decide to do so.

    You should definitely meet with an attorney that handles trust and estate litigation to discuss the matter, weigh your options, and decide whether or not to pursue any action.

    Good Luck

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  • I am trustee of my deceased grandmas estate. Do I own her file?

    I have hired a local attorney to help me with a probate-her previous lawyer did not put my grandmothers home into her trust. I asked the previous attorney for the file and she said no that she owns it. I will add that there is a cotrustee to a por...

    Kendall’s Answer

    Under California law, the attorney-client privilege held by the client passes to the administrator upon death. You might have to institute some kind of court proceeding to get appointed as special administrator, if the former attorney is very insistent on not turning anything over. But if you do that, there is no question that you have the authority to be given the file.

    Also, under the California Rules of Professional Conduct, the attorney NEVER "owns" the file. The attorney may be able hold back certain documents or information as his or her "work product," (such as research and notes), but the client's file is client property and should be released. That is very clear.

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  • No property listed in will, is there anything I can do to try and get the condo awared to me? I do not intend to sell it.

    My Grandmother intended on having no property when she passed so her Condo was not listed in the living trust and pour over will documents, at least not that I know of. My Aunt is the trustee/Executor/power of Attorney for her, she advised she was...

    Kendall’s Answer

    When you say the condo "was not listed" in the trust/will, do you mean to say that title is still in your grandmother's name individually, or that it simply wasn't listed in her trust as a specific item to be distributed upon her death? That is a critical point, because it determines what authority your aunt has over the property.

    If it's not titled in the trust, and is still in your grandmother's name individually, it must be subjected to a formal probate administration before your aunt can get any authority to handle it, which means you would likely be given notice of her intentions. On the other hand, if it is in the trust already, and she is trustee, she has all the authority she needs to handle it in the fashion directed by the trust.

    Unfortunately, your status as her granddaughter doesn't automatically give you any rights to her property. Unless, of course, you are named as a beneficiary in a trust or will, or you are an heir at law, if she left no documents.

    You need to engage in your aunt in a conversation and find out specifically what the status is with the condo. If you are a beneficiary otherwise, you may be able to work something out with her.

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  • I lack the resources to continue caring for my elderly mother.

    My mother is 87 years old. For the past five years my family and I have provided her with extensive care. She requires assistance with all aspects of her daily life. I work full-time and my college-age children assist me in giving care. Over t...

    Kendall’s Answer

    Neither you or your brother have any liability (in terms of being financially responsible) for your mother. However, she obviously has care needs that -based on your e-mail - she does not have the resources to pay for.

    If she has lost the ability to responsibly care for herself, another person needs to start making those decisions for her, either through a power of attorney or, more likely -- based on her behavior -- through a conservatorship. A conservatorship is a court process where you get appointed with the authority to make decisions for her, including her residence and placement, if she can't live with you anymore.

    I would refer you to your local bar association, which will have a lawyer referral service, and may be able to put you in touch with an attorney who can assist you on a reduced fee, or no-fee basis. Your county court may also have a self-help center, where you could get assistance on handling the paperwork yourself, without the assistance of a lawyer.

    Finally, as to placement, you should visit canhr.org, which is a valuable resource for information about Medi-Cal, skilled nursing care and other information. You can also call your county's Long Term Care Ombudsman, who should be able to lend some assistance.

    Good Luck

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  • Is a truck considered 'personal property" or "real property"? and what about a checking account?

    This is it for what my dad has left (he transferred his property to me a yr. before he died). can I get away with just the affidavit for personal property at the bank and DMV and not have to file anything with the court? it's definitely a small es...

    Kendall’s Answer

    You absolutely do not need to probate this estate, or file anything with the court. You can present the affidavit to both the bank and the DMV (in fact, the DMV has their own small affidavit form that you should use). The will does not need to be subjected to probate -- the filing fees alone are a few hundred dollars, and you can avoid it because of the small value of the estate.

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