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Janet Lee Brewer
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Janet Brewer’s Answers

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  • Is a Final will internationally binding?

    Hello, I am a US Citizen permanently living in Europe with my son (minor). I would like to make an internationally binding will, which appoints a guardian and ensures that if I die all my assets go to him. Since my assets are in 3 different countr...

    Janet’s Answer

    • Selected as best answer

    I agree with Ms. Azam.

    Although a will made under the Hague convention may be "legal" in every country that has subscribed to the convention (there are only 14 countries that have subscribed to this particular convention, by the way), the laws of the country where the property is actually located will be enforced if they are contrary to the will ... for example, if you created a will that left everything you own to a charity but you owned real estate in France, French law would disregard your will to a certain extent ... France has so-called "forced heirship" laws that require you to leave a certain percentage of your estate to your children. So in France that percentage would be distributed to your children and the rest would be distributed to the charity.

    If you have property in several different countries, you need to consult with a lawyer in each of those countries to make sure your assets can/will be distributed in accordance with your wishes.

    There is an international organization called "STEP" (Society of Trust and Estate Practitioners) whose members are knowledgeable in international estate planning. There are members in almost every country of the world. Go to www.step.org and search for lawyers who can assist you (if you have property in the US, I am a STEP-USA member).

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  • My sibling has power of attorney and is trustee to my mothers trust. Suddenly she and my brother won't have any contact with me

    There is a business involved and the estate is quite substantial. Since Mom is incapacited I can't any information from her. I have no copy of the trust, but she has leased out the business for 18 years, so that I'll be dead when it is terminated...

    Janet’s Answer

    If your siblings are preventing your mother from seeing you or if you have cause to believe they are mismanaging her financial affairs, you should contact Adult Protective Services in the county where your mother resides and tell them about your suspicions. Alternatively, you can retain your own attorney and attempt to obtain copies of the trust and other documents through the probate court (however, you might not have the right to see this information until after your mother's death - it depends on the terms of the trust document).

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  • My father is dying. My mother had an irrevocable trust set up for her children in the event she died first (she did).

    My father's new wife is now claiming that the trust is invalid because California is a community property state and is refusing to release the property named in the trust to the children. Am I in for a big fight?

    Janet’s Answer

    If the trust was set up with your mother's own property or her share of the community property, then I do not understand how your stepmother can claim a community property share for herself.

    As the other 2 attorneys have said, you really need to consult a lawyer who can review the trust and determine what your rights are. If it is necessary to file a petition with the probate court to compel your stepmother to turn the property over to you, the petition will need to be filed in the county where the trustee of the trust resides (it does not seem likely that your stepmother would be the trustee of a trust established by your deceased mother, so if you don't know who the current trustee is, you may have a problem figuring out where to file the petition - but an estate planning lawyer should be able to make that determination after reviewing the trust).

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  • CA, Do i have a right to a copy of my mothers will from executor.

    The executor is my sister.Ihave asked to see the will,she said no. MY mother olny passed a moth ago. How can she getaway without showing me a list of assets.

    Janet’s Answer

    I'm sorry about your mother's death. If your mother had a will, California law requires that it be lodged with the probate court within 30 days after death. If your sister is not willing to start the probate, then you can file your own petition to probate the estate. Contact a probate lawyer in the county where your mother resided to find out more information.

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  • How can a foreigner heir claim assets of deceased foreigner california resident ?

    A California resident has passed away. According to his country's laws, Heir A is the sole heir. Heir A resides in the home country. What is the best way for him to receive the assets of the deceased in California (mostly personal property , ba...

    Janet’s Answer

    If the person resided in California law and did not have a will or a trust, then California's laws of "intestate succession" would apply. Assuming that "Heir A" would also be the deceased person's heir under California laws, Heir A can claim the deceased assets in one of two ways: if the assets are worth less than $150,000 then it might be possible to use a "small estate affidavit" to claim them. If they're worth more than $150,000 then it will be necessary to open a probate estate.

    I have experience assisting residents of other countries (Italy, Croatia, the UK, France) in collecting assets in California. Please phone my office for an appointment (my office is in Palo Alto).

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  • What should I do to protect my inheritance from a caregiver who has poisoned my mother against me and got her name on the will?

    Fortunately, I have about a half dozen or so witnesses, non-related, that will coraborate the financial abuse and undue influence. My mother is 84 years old, on lots of medication, and easily persuaded by the wrong-doers suggestions. There is a wi...

    Janet’s Answer

    I suggest you contact Adult Protective Services for San Diego County as soon as possible: http://www.sdcounty.ca.gov/hhsa/programs/ais/adult_protective_services/index.html

    If your mother lives in a different county, then contact APS there. It is quite possible your mother's caregiver has committed financial abuse, but the time to determine that is now - not later.

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  • If I petition for Letters of Administration must I start the process of Probate?

    My husband died intestate. He opened a line of credit (account is his name only), on our only home which we were joint tenants (I signed the LOC papers as a Trustor). The bank will not speak to me about this debt until I file a petition for Letter...

    Janet’s Answer

    You need to speak with an estate planning attorney. If the home was in joint tenancy, then there is nothing to probate - you became the owner at the moment your husband passed away. You might want to file a "spousal property petition" to confirm that the house was actually community property (which might have some important tax consequences if you ever want to sell the house and pay less capital gains tax on the sale).

    Usually a spousal property petition costs less than $3000 to do.

    Assuming that you even could probate your husband's estate (as I mentioned above, there's really nothing to probate), the legal fees on 50% of the house (50% of $160k) would be approximately $5800.

    If there really is nothing to probate, then the legal fees would be $0 because California law says the legal fees for a probate can only be paid out of the probate assets. Frankly, that's the larger problem that you face ... no attorney is going to agree to do the work involved in a probate knowing that the paycheck is zero.

    I suggest you get the Nolo Press book on How to Probate an Estate in California. If you don't want to buy it, you can probably borrow it from your local library. The forms might be out of date, but you can find the updates through the Court.

    Based on what you've described, this should be a simple enough situation that you can fill out the necessary papers and submit them to the Court yourself. The initial court filing fees will be $395; you'll need at least 1 certified copy of the letters of administration which will cost about $30 each; you'll need to publish a notice in a newspaper in Montebello (you can ask the court for a list of the newspapers you are required to use and choose the one that's least expensive) at a cost of $100 to $500 (depending on the newspaper); and you'll need to file a petition to close the probate (another $395).

    Hope that helps.

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  • California is a Community Prop. State, can the surviving spouse benefit from a prop under a Trust before marriage?

    Scenario: My friend's husband owned a property from previous marriage. Surviving spouse/husband recorded a Quit Claim Deed to himself as Trustee of a Trust. Husband re-married to my friend in 12/1996. My friend was never on the Trust or Title. Hus...

    Janet’s Answer

    • Selected as best answer

    Mr. Bergman is 100% correct. Situations like the one your friend is in highlight the importance of estate planning in second marriages.

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  • Are there any legal issues with accepting a monetary gift from my grandparents who are foreigners and not residents of the US?

    My grandparents want to give me a monetary gift ($300K USD) for the downpayment of a house, but they are foreign nationals and do not live the US. It is my understanding that if I were to receive a gift from a US resident/citizen, there are no re...

    Janet’s Answer

    The gift tax rules relating to gifts from nonresidents are very complex. Some gifts are not subject to US gift tax, but other gifts are - it depends on the type of the asset you are receiving (cash, stock in US corporations, stock in foreign corporations, US real estate, etc.) and also where the IRS deems that the gift was made - so, for example, if the gift is deemed to have been made outside of the US it probably would not be subject to US gift tax, but if it is deemed to have been made inside of the US it could very well be subject to tax.

    And although the general rule is that the person who makes the gift (the "donor") is the one responsible for the tax, the IRS can collect the tax from the person who receives the gift (the "donee") if the donor fails to pay.

    In addition to the gift tax rules, you also need to be aware of the IRS rules regarding foreign bank accounts and ownership of other foreign assets.

    Bottom line: make sure you speak with someone who is extremely familiar with gift tax issues as they pertain to gifts from nonresident aliens or you may have a very nasty surprise.

    And since the gift tax exemption for nonresidents is only $60,000 (that's sixty thousand dollars), the gift taxes on even a relatively modest gift can be quite high. For example the gift tax on a $300,000 gift would be approximately $74,800.

    If the gift is structured properly by someone who is familiar with international estate planning, that entire tax could be (legally) avoided.

    So, you can either spend a few thousand dollars getting the right answer and save $74,800 in taxes or you can take your chances and perhaps owe the $74,800 plus penalties plus still have to hire someone to assist you with doing it correctly.

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  • As next of kin, do I have any legal rights?

    My father died without a will and his wife is 100% deeded the house, however, she cannot afford the payments and the house is going into foreclosure. As the only next of kin, do I have any legal rights to take over ownership. There is over $150,0...

    Janet’s Answer

    As Mr. Tigerman suggests, your stepmother can agree to deed the house over to you or you can purchase an interest in it. If you do these things, though, you need to check with either a probate/estate planning lawyer or a real estate lawyer to make sure you don't lose the property tax basis (that is, the parent-child exclusion that keeps the current property tax upon the transfer of the house). If the transfer is done as a gift, you will also need to determine whether it will be necessary to file a gift tax return.

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