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Janet Lee Brewer
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Janet Brewer’s Answers

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  • Can an executor, with full authority, allow a beneficiary to live in a decedent's Ca. home? Any recent changes 2 that Ca. code?

    I am 1 of 2 beneficiaries of my father's estate in Ca. The executor lives out of state. Iv'e lived in the decedent's home since he passed away 1 yr. ago. The executor & I agreed I could remain in the home until it sold (it's currently on the marke...

    Janet’s Answer

    There is a specific California civil code section that states no "owner" of a property can be charged rent unless s/he has agreed in writing to pay it. If you are a beneficiary of the estate, you are an owner of the property.

    As for your claim for reimbursement, you may need to hire an attorney to assist you in obtaining this .

    I would be happy to assist you. My office is in Palo Alto, but I have represented probate clients as far north as Mendocino County and as far south as San Diego County.

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  • Father died 7/2012. Sister & I closing on his out of state home soon (went into contract before he died). Am I subject to tax?

    Father's estate is under 5 million, and from what I read there is no inheritance tax in CA.

    Janet’s Answer

    I'm sorry about your father's death. If his house was not held in a living trust, I doubt that you will be able to sign the papers to transfer it to a new owner unless/until you are appointed as his "executor".

    You need to contact a probate lawyer in the state where he resided (which may or may not be the state in which he owned a home) IMMEDIATELY.

    If your father resided in California, I would be happy to help you.

    As to your tax question, if your father owned the property as of the date of his death, it should qualify for a "step up" in cost basis and there would be no capital gains tax on its sale. Whether there is estate tax or not depends on the value of his entire estate (including bank accounts, life insurance policies, brokerage accounts, 401ks, IRAs, checking & savings accounts, etc.).

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  • What if the beneficary of the residuary dies before everything is distributed from the estate what happens?

    please help us with this ty...

    Janet’s Answer

    I've had to deal with this issue. The long and short of it is that you're then in a "double probate" situation unless the beneficiary did not outlive the "survival" period (in most wills there's a clause that says something like "if the beneficiary fails to survive for x number of days, the beneficiary will be deemed to have predeceased me").
    If you need the assistance of a probate lawyer, I'd be happy to help. My office is in Palo Alto, but I've handled a number of San Francisco probates.

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  • Is this a possibility for spousal property petition?

    Husband and wife have a joint trust with only each other as cotrustee/beneficiary. The husband's will gives everything to the trust. However not all properties were added to the trust. Can wife file spousal prpperty petition to avoid full probate?

    Janet’s Answer

    In addition to the response Bob Bergman gave, the Santa Clara County Probate Court is also quite amenable to what's sometimes called a "Heggstad" petition - it's a petition that says, in effect, "we meant to put everything into the name of our trust, but we forgot a few things; please confirm that these assets really belong to the trust."
    My office is in Palo Alto; I'd be happy to assist.

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  • Executing will and inheriting half of a property

    My partner is the executor of his mothers will. She has left an absolute mess of unpaid taxes and debt. She has named my partner as the sole heir because his brother is going through bankruptcy. The biggest concern is the property in California. I...

    Janet’s Answer

    Your question isn't clear. You say that the loan was in "both names". Whose names? Your partner can certainly "disclaim" his right to inherit the property and then he would not be responsible for either the house or the debt.

    You partner needs to talk to an attorney to determine his best course of action here.

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  • Want to create a will to add to my Moms previous will to protect her against renters wanting to do construction to get property

    Basically I want to be executor to my Moms extate which she wants me to do, to protector her, we have a sibling and a significan other that are trying to move in and i want to prevent any unauthorized changes to the house or structure. I want to k...

    Janet’s Answer

    It's not clear to me what a rental agreement will do to protect your mother's property against unauthorized changes to the house. Just having a rental agreement in place certainly would not prevent your mother from signing ownership over to someone.

    As Mr. Frederick said, you need to speak with a competent estate planning lawyer. Do-it-yourself planning is foolish - especially in a case like this.

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  • What happens if one don't sign a deed on the house in order to make a new will?

    My mom owns a house-wants to make a simple will divided 3-way me(the daughter) 2 grandsons. One grandson is on the deed of the house for few years,now she needs to take him off in order to devide the house properly and fair.My concern is what if...

    Janet’s Answer

    Your mother has another issue that the out-of-state lawyers probably aren't familiar with: PROPERTY TAXES. If the grandson transfers his interest in the house back to your mother, HER property taxes will increase to fair market value on the portion transferred.

    Do it yourself estate planning is costly ... I'm willing to bet that the increase in property taxes alone will greatly outweigh what it would have cost your mother to have a lawyer assist her with her plan. Don't compound the problem by continuing to do it yourselves.

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  • What constitutes a properly done will in CA?

    Does it have to be official - witnessed and notarized? How about a casual note with final wishes and it's signed at the end.

    Janet’s Answer

    Under the right circumstances a fairly "casual" note that's signed and dated can be admitted as a will ... as long as it's entirely in your own handwriting. It can be on the back of an envelope if it says "this is my will. Give all my property to (name)." .. I got one like that admitted to probate a number of years ago.

    BUT, it would be better if the will were more formal - that way, it's less likely to be challenged. And since there are no "do-overs" after you're gone, if it's important to you that your assets go to the people (or organizations) you want them to go to, then it should be important to you to do it right.

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  • Person inherits property with cal. community property law and puts a person in his will and dies, does that person named in the

    will receive said property?

    Janet’s Answer

    Your question is not very clear.

    If you inherited property your spouse's share of the community property , then it becomes your separate property (unless you inherited it under an irrevocable trust or some other way that restricts your rights to transfer it).

    Unless there were some restrictions placed on the inheritance, you can leave it to whomever you please. And if it's your share of community property, you have the right to leave your share (50%) to whomever you please.

    If this isn't the question you're asking, please provide clarification.

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  • Mother passed 3 months ago. Assets are in a trust & I am trustee. How much can I pay myself for administration of the trust?

    Did reverse mtg on moms house; paid her bills, dealt with social security, 24/7 home care, grocery & shopping runs, doctors, senior care, legal, reverse mtg loan process, funeral, setup & making home presentable for sale (got help from spouse & so...

    Janet’s Answer

    • Selected as best answer

    California has a set fee for probate, but not for trust administration. If the trust does not set a fee, then you are entitled to "reasonable" fees for administering the trust.

    Reasonable fees can vary - anywhere from $15 or $20 per hour to $150 per hour or even 1% of the value of the assets in the trust estate. What is reasonable depends on a number of very subjective factors, including your experience (so a professional trustee is probably entitled to more $/hr. than a family member because a professional presumably has more skills to bring to the table).

    In most cases you can justify charging what you would earn per hour in your "regular" job. In some cases you can justify charging more.

    I suggest you send a "Notice" of proposed compensation to the beneficiaries and give them 60 - 90 days to object. If you don't receive any objections within that time, then pay the proposed compensation to yourself (at least if they try to object later, you'll be able to make a good case to the Judge that you gave them the opportunity to object and that when they didn't object, you assumed the fee was reasonable).

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