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Janet Lee Brewer
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Janet Brewer’s Answers

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  • What exactly is Generation Skipping Transfer tax? What does it mean to a next in line heir?

    please advise... ty

    Janet’s Answer

    Mr. Daymude gave a good explanation. To add to it ... the generation skipping transfer tax applies if more than a certain amount is given to anyone other than your spouse and children or to unrelated people who are more than 37-1/2 years younger than you (so if you're 60 and you give assets to someone who is age 22-1/2 or younger, it would be a generation-skipping gift). Until Dec. 31st, you won't run into the generation-skipping tax until you give away more than $5.12MM dollars. Unless Congress fixes the law beginning 1/1/2013, you could run into this problem if you give away over $1MM.

    The tax is a flat 55% on all gifts that are considered "generation-skipping transfers". That tax is in addition to - not instead of - the "regular" estate tax. So if you had a $6MM estate and gave it all to a "skip person" this year, you'd pay the regular 35% estate tax on $6MM - 5.12MM and you'd pay an ADDITIONAL 55% Generation-Skipping Tax. If you wait until next year and the exemption goes down to $1MM, you'd pay up to 55% regular "sliding-scale" estate tax on $6MM - $1MM (the exemption decreases next year and the maximum tax rate increases) PLUS the 55% GST Tax.

    This is an area that has a number of very technical requirements and there are several exceptions to the rule (for example, if the donor is making the gift to his grandchild because his child - the grandchild's parent - is deceased, the grandchild is not considered a "skip person"). If you have questions, you need to consult a competent estate planning lawyer for assistance.

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  • Is there any reason not to distribute trust assets before deceased fathers probate is opened or closed?

    I would rather not wait a long time and my other siblings feel the same way. Is there much liability as a trustee and beneficiary of a trust that is partially distributed.

    Janet’s Answer

    Presumably your father had a will that says something to the effect of "distribute my probate assets to the trustee of my trust to be distributed as set forth therein." If it does and if you've terminated the trust before the probate is closed, how will you be able to follow the terms of the will?

    I have a different question ... why is a probate necessary? If you have a lawyer, I suggest you ask him/her why s/he's not filing a "Heggstad" petition or a Probate Code Section 850 petition? In most circumstances that would be a simple one-hearing case (at a fee that's far less than the probate fee).... it would ask the Court to transfer assets that weren't in the name of the trust due to "oversight" or other reasons into the trust. If the lawyer says that neither Heggstad nor section 850 apply, ask for that opinion in writing.

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  • I live in California, my father died 25 years ago I was the executor. My 1/2 brother who was 15 at the time now wants paperwork

    The estate was settled 25 years ago. My 1/2 brother was 15 years old. He now wants to see thepaperwork from my/our fathers estate. I do not have the paperwork, it was 25 years ago

    Janet’s Answer

    If your question is "do I have to produce the paperwork?" or "should I have kept it", the answer is don't worry about it ... your half brother should have asked for it years ago (the clock started running when he turned 18).

    Any rights he might have had to receive the paperwork expired long ago (the legal concept is called "laches" - an unreasonable delay in pursuing a claim. Furthermore, if he was 15 at the time of your father's death, he presumably had a guardian who was responsible for looking out for his legal rights.

    It's doubtful he has any claim against you (especially if this was an actual court probate - the court order that the judge issued most likely says something to the effect of "the executor has competently performed all duties required of him/her." That would be conclusive (100%) evidence in any case your half brother might try to bring against you ... the Court has already ruled that you did everything right.

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  • What is the cost of filing a power of attorney in Togo lome west Africa federal high court an affidavit of oath to validate form

    I need contact info for a international lawyer specifically one able to practice in Togo lome west Africa federal high court

    Janet’s Answer

    I doubt that you will find a lawyer able to practice in Togo Iome on this website. You'll need to contact a lawyer in that country for assistance.

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  • Is my mother's Special Needs Trust for my sister valid, if so, how do I distrubute funds and how much to her?

    I am the Trsustee named in my deceased Mother's Trust. She added a Special Needs Section for my sibling. My sister is undiagnosed with any mental of permanant physical imairments and manages to work to support herself. She does however, receive as...

    Janet’s Answer

    Without reading the trust it's impossible to say whether the special needs provisions are valid or not. But just because your sibling has not been diagnosed with any kind of impairments doesn't mean that the SNT isn't valid.

    As for giving your sister a stipend and the other actions you mention, you really need to retain a lawyer who can advise you about your specific duties (and the risks you run if you don't fulfill your "fiduciary duties" - your obligations as a trustee).

    In short, no one should be providing the kind of advice you're asking for without knowing a great deal more information than you could possibly provide in a forum like this one.

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  • Can an 18 year old be named as guardian of a 16 year old sibling if the parent dies?

    My friend is very ill and may not have long to live. Can she name her 18 year old son as legal guardian of his 16 year old sister in the event she dies? There is no other family. Is it legitimate if she writes it in a will and has it notorized or...

    Janet’s Answer

    This sounds like a very sad situation.

    Mr. Johnson makes some very good points. It is possible to have an 18 year old appointed - I actually helped an 18 year old obtain guardianship many years ago. But the Judge and the court investigator asked a lot of questions and the 18 year old only succeeded in being appointed because she had a steady job and had a lot of other unique factors going for her.

    As for having a will notarized, California does not recognize notarization of wills. The will either needs to be completely in the "testator's" own handwriting OR it needs to be signed by the testator and witnessed by 2 people who are over 18 (not the son!). The witnesses have to actually see the testator and each other sign and they need to all stay in the same room until everyone has signed.

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  • How do we find my father in laws will if he had one

    in california

    Janet’s Answer

    Unfortunately, if you don't know where your father-in-law kept his will, it will be virtually impossible to find. If he had a safe deposit box, you can go to the bank with a death certificate and the bank manager should let you search the box for a will (be aware: the bank manager will accompany you and won't let you take anything else out of the box).

    You might also contact the local city/county bar association and ask them to send out an email blast to their members asking if anyone recalls having prepared a will for him.

    If your father had a tax preparer or a financial advisor, they might know if he had a will and who prepared it.

    You might also check with his friends to see if he ever discussed a will with them.

    Otherwise, you will have to consider that he died "intestate" and proceed accordingly.

    If you need assistance probating his estate, I have handled probates in San Diego County and would be able to assist you.

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  • What to do with remaining assets. Probate ended 12 years ago.

    There are less than $2,500 of assets remaining my mother's name. Probate ended 12 years ago and unfortunately, there were a couple of assets that didn't make it into probate that were in her name. Do we need to open probate again? Is it worth ...

    Janet’s Answer

    • Selected as best answer

    If the order for final distribution contained a clause that says something to the effect of "any after-discovered property shall be distributed to the beneficiaries in the same proportions as stated herein", then you should be able to show the bank a certified copy of the order and have them distribute the assets to you.

    You might also be able to use a small estate affidavit.

    Given that the filing fees and publication fees to reinitiate a probate would be well over $600, it probably would not be cost effective to re-open the probate.

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  • In California, how long does an Irrevocable trust need to be in place to protect my house from creditors if I decalre bankrupcy?

    I am preparing my house for sale in the next 2 months.

    Janet’s Answer

    Who established the trust? If you set up the trust and you are also a beneficiary, then it will not protect you against creditors whether you set it up yesterday or 50 years ago.

    California Probate Code section 15304(a) and (b) make it extremely difficult for a California resident to establish a trust that offers creditor protection.

    My office is in Palo Alto. I'd be happy to assist you with this.

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  • About Durable Power Of Attorney: Can my son sell the house when I am abroad (absent) and NOT for medical reasons?

    I looked at several Durable POA forms - each states only _medical_ reasons. But now I found http://www.avvo.com/legal-guides/ugc/powers-of-attorney-2 where it says, "This document may be used when a person becomes mentally or physically incapac...

    Janet’s Answer

    • Selected as best answer

    There are 2 different POA types - one for medical matters and a separate one for financial matters. In addition, the financial POA can be set up to handle transactions while you have mental capacity to do things yourself or when you are incapacitated.

    Most title companies have very specific language that they want to see in a power of attorney that permits someone else to sell your real estate. Most forms you find on the web or in an office supplies store lack that language.

    As the other attorneys have said, you need competent legal advice to make sure that the form will work when you need it to.

    My office is in Palo Alto. We'd be happy to assist you.

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