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Janet Lee Brewer
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Janet Brewer’s Answers

1,792 total


  • What does waiver of notice usually mean in a probate case?

    please advise....

    Janet’s Answer

    Mr. Carrier's answer works for California, too. If you want to make sure you're always notified of court petitions, then you can fill out a form called "Request for Special Notice". Make sure you follow the instructions regarding sending it to other heirs/beneficiaries, the personal representative, the personal representative's attorney, and the Court.

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  • My fathers probate Is taken now over 7 yr. to finish and we are getting the run around from our lawyer... Need help!

    I have 2 siblings and our uncle is the executor of our probate. Our lawyer has told us we've done everything we needed and the executor has also. That it's just a matter of things on his end. That has been the story for the last year! When the exe...

    Janet’s Answer

    File a petition with the probate court to have the executor removed for failure to complete the probate - if it's his lawyer's fault, then the executor needs to fire his lawyer and hire someone else (or file a petition to finish the probate "in pro per").

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  • Which trust is right for us?

    Married, have a home. Son is disabled, so we need to be able to give him everything, but keep him eligible for medicare when he turns 18. Have 2 other children.

    Janet’s Answer

    Both Mr. Pippen and Mr. Frederick raise good points. I strongly suggest that you contact a certified specialist in estate planning law. You can find a list of certified specialists in Riverside County here: http://members.calbar.ca.gov/fal/MemberSearch/AdvancedSearch?LastNameOption=b&LastName=&FirstNameOption=b&FirstName=&MiddleNameOption=b&MiddleName=&FirmNameOption=b&FirmName=&CityOption=b&City=&State=&Zip=&District=&County=RV&LegalSpecialty=06&LanguageSpoken=&x=88&y=8

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  • Could my mother will her home to my children, but write in a clause that states that my brother can live there until his death?

    My mother would like to write me out of her will. I have 2 children and we are financially secure. My brother is unmarried and has no children, but has no money and no pension plan. Is there a clause that would leave use of the house to my brot...

    Janet’s Answer

    The other attorneys are correct that this can be done. However, if you want to keep your mother's property tax basis ("Prop 13"), she will need to make sure that she does not accidentally trigger an increase in property taxes when she does this.... it would actually be better from a property tax standpoint for her to provide that your brother has the right to live in the house for his lifetime and then upon his death, the property passes to you.

    HOWEVER, depending on the size of your mother's estate and how many gifts she has made during her lifetime, there might be estate tax reasons not to do what I just suggested.... it would be best to review the entire situation with an estate planning lawyer who is familiar with both estate/gift tax law and the best way to preserve the parent-child exclusion from property tax reassessment.

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  • What if there's a Will that says this, "Gift of the residue of my estate": Everything that is left of my estate after all of the

    ...above gifts, & after death taxes, the payment of my debts, & the expenses of my funeral & last illness & of thde administration of my property & estatte, costs, expenses of litigation,counsel fees or other charges the Executor may incur shall b...

    Janet’s Answer

    Without reading the entire will to make sure there isn't another gift somewhere, I would be guessing. However, based strictly on what you quoted above, it appears that the will contains a serious error. If the person who created the will (the "testator") is still alive, I suggest s/he go back to the lawyer who made the mistake and have it rectified immediately!

    If the "testator" is not alive, then the will will need to be submitted to probate. There are (at least) 2 possible outcomes:

    a) Mike Smith can try to prove that there was an error in the document and that he is supposed to receive the "entire" residuary estate or

    b) the 50% that does not go to Mike Smith will pass by "intestate succession" to the "testator's" nearest surviving relatives.... if Mike Smith is a half-brother and there are no other siblings, then it would appear (based on the information you provided) that he would end up with the entire estate.

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  • Can a 13 year old petition to change guardianship from grandparents to uncle?

    13 year old is living with grandparents who have legal guardianship.She is not happy there and is abused (hit, slapped, mistreated) and wants to leave. Can she petition to live with her uncle. Not only can she have a better life but a chance at li...

    Janet’s Answer

    Mr. Carrier's answer might be correct under Michigan law, but in California a 13 year old is old enough to file his or her own petition for a change in guardianship - in fact, California law provides that a 12 year old is old enough to petition for guardianship. See California Probate Code section 1510(a)].

    There are nonprofit agencies that will assist the child in petitioning for guardianship. In Silicon Valley, there is an organization called "LACY" (Legal Advocates for Children and Youth). In Los Angeles County, you should try contacting the Children's Law Center of California.

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  • What happens to funds from a closed probate proceeding when the rightful heirs cannot be found.

    Looked for heirs on heirs.com, ancentry.com, placed an ad in Austin, TX newspaper.

    Janet’s Answer

    You don't provide quite enough information to answer your question, but if the heirs were named in the probate proceeding and they can't be found, then as a general rule the assets are supposed to be transferred to the County Controller's Office to be held until the heirs claim them.

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  • A petition for probate has been filed with the court clerk with a hearing date set can the petition be stopped?

    All parties request no probate .

    Janet’s Answer

    As Mr. Tigerman says, the hearing on the petition cannot be "stopped" if the person who filed the petition complies with the proper procedure. However, if you have a "legal interest" in the estate (for example, if you are an "heir"), you have a right to appear at the hearing and object to the petition.

    Be aware that this is not "Judge Judy" or "The People's Court". The judge will give you time (usually 30 to 45 days) to find a lawyer and file a "contest" or an "opposition" to the petition. If you don't do that, then the petition will probably be granted on the rescheduled hearing date.

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  • My widowed father passed away, I am POD on his bank accounts and CD's. There is a Car, is probate required?

    PERS retirement death benefits VA insurance 2011 car no disagreement with beneficiaries I am the executor named in the will

    Janet’s Answer

    I'm sorry about your father's death. You don't provide enough information to determine whether a probate is necessary. Any assets that have a POD beneficiary named would not need to go through probate. That is also true of any assets he has in a living trust. Likewise, assets that were held in "joint tenancy" would not need to be probated.

    If the rest of his assets (that is, assets without POD beneficiaries, not held in a trust, not held in joint accounts or in joint tenancy) are worth $150,000 or less, then a probate will not be necessary. The estate can be settled with a "small estates affidavit". To use a small estates affidavit, you need to wait 40 days after his death and then follow the affidavit procedure. You can find a sample here: http://www.saclaw.lib.ca.us/Uploads/files/forms/small_estate_affidavit.pdf

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  • What happens to a note (for a refinanced house) carried by a family member if that family member dies?

    It is in the state of california one of the two borrrowers is also the poa for the the estate of the family member carring the note.

    Janet’s Answer

    I agree with Mr. Mashal. The lender still has the right to enforce the promissory note. If the estate of the deceased family member fails to pay, the lender may have the right to foreclose on the security (that is, force the sale of the house if the promissory note was secured by a RECORDED deed of trust) or file a collection suit.
    Be aware, though, that certain "statutes of limitations" may apply to the ability to collect on an unsecured loan. You need to contact an attorney immediately if you want to be sure you can enforce your claim.

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