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Michael E Freedman
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Michael Freedman’s Answers

10 total

  • How to fill out the caption of a complaint as a self-represented plaintiff who is a Trustee representing a Trust.

    I am the sole Trustee (John Smith) of my revocable Trust (John Smith 2012 Trust). My apartment building is owned by the Trust. My Trust has an active DBA (ABC Apartments) in the county where my building is located. When I file an unlawful detain...

    Michael’s Answer

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    A trust is not an entity. Only the trustee is the real party in interest for a trust. If this is your revocable trust, then you are genearlly treated the same as the owner of the property. If this is an irrevocable trust, you may have other obligations to the remainder beneficiaries. If you are litigating as trustee of your revocable trust, then proceed as trustee, who is an individual, not an entity. I do not see that a DBA is relevant for purposes of identifying the real party in interest. Identify yourself by name, then add "trustee of the ____trust."

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  • What is a constructive trust?

    When is it used? Who can use it? What forms are needed? How to obtain them when residing in a different State? Thnx~ :)

    Michael’s Answer

    A constructive trust is a legal remedy. It is not a kind trust that is created by a settlor. The court imposes a constructive trust on the assets of a liable person who is in possession of trust assets that have been wrongfully taken, such as financial elder abuse or undue influence.

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  • Okay, this is what someones Will says, it's a bit lengthy for me to type but I need to so ....PLEASE give opinions....

    I give half of what is left after deducting the above gifts, & the payment ogf my debts, all death taxes, & the expenses of probate administration of my estate to those charitable, educational or scientific research organizations selected as provi...

    Michael’s Answer

    The executor will need to file a Probate Code 11700 petition to determine which charities are to receive the 50% bequest.

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  • If a will shows that the testator had contrary intentions for the residuary & the beneficary died before all the schedules...

    ....have been distributed plus ALOT of unclsaimed property keeps rolling in, who gets it the residuary now?

    Michael’s Answer

    First, with regard to unclaimed property, an Final Order Distributing a probate estate will ordinarly have an omnibus clause to distribute any estate assets that may later be discovered. The executor will comply with the Order if unclaimed property is discovered. If a beneficiary dies before the decedent, the issue is called lapse. California has an anti-lapse statute to determine distribution. The interpretation of a will, if an ambiguity must be resolved, must be determined by the court prior to a final order of distribution.

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  • So if theres an Administrator & an Executor of an Estate, does that mean there a will & then also not a will..?

    please help on this one Thnx~ :)

    Michael’s Answer

    An Administrator is a title that may be given to the Personal Representative of a Will in a situation where the appointed Executor of the Will is unable to serve as the Executor. Sometimes the Administrator title is with Will annexed.

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  • The Bank of America(Executor) & the Public admin.did not notify heirs of their Uncles Will in probate in San Francisco

    ...because of this it has caused ALOT of harm to their families futures... What should be done?

    Michael’s Answer

    I agree. Heirs at law must be notified of probate of a will. The probate court is without jurisdiction unless heirs at law are given notification of probate. However, the big question really is, are the heirs at law going to contest the will? Otherwise, notice can be cured and the court will have jurisdiction to proceed.

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  • What action should I take?

    I am a beneficiary to a trust that provides income through a real estate holding. One of the trustees is and has been for the past 3 years occupied the building to run a family business I hold no interest in. The past three years the trustee has d...

    Michael’s Answer

    My first impression of this issue is that one of the Trustees is self-dealing. If I understand you correctly, the trustee is occuying trust real property, and running a buiness. If the trustee is not paying market rent, he is self-dealing, can be removed and surcharged for the damages. If the two trustees are co-trustees, they must act unanimously. Where there is conflict between co-trustees, one must file a petition for instructions. A beneficiary could also petition for instructions and removal. Of course we need to disucss details.

    Michael

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  • Can foreclosed property be sold after owners death and before probate?

    I found some property that was foreclosed on listed with a realtor. The owner died in February 2009 and the foreclosure was in June 2009. There is no probate on the individual and his daughter is not going to file one. There was some land line ...

    Michael’s Answer

    I'm in California, and so the law is different here than in your state. I had a recent probate with the same issues. After the foreclosure, the estate is entitled to the balance of proceeds from the foreclosure sale. If you have no such balance due from the sale, then I presume that it would not be economically worth while to pursue a survivor's action.

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  • Probate and Trust

    What can be done to expedite a personal representative of a trust?

    Michael’s Answer

    Beneficiaires of trusts often have rights afforded to them under the Probate Code or laws of their state. (I am a California Attorney.) In California, a beneficiary has the right to an accounting, distribution, surcharge and removal of the trustee. The first place to start is by reviewing the terms of the trust to determine the identification of the beneficiaries, and the succession of trustees. Then, a letter to the current trustee requesting the distribution and accounting. You might request a resignation of the trustee. Finally, your last resort is a petition for removal.

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