Janet Lee Brewer’s Answers

Janet Lee Brewer

Palo Alto Estate Planning Attorney.

Contributor Level 17
  1. Can creditors have claim against a small estate that falls under CA Probate Code 13100?

    Answered over 2 years ago.

    1. Thomas Edward Rossmeissl
    2. Janet Lee Brewer
    3. David S Hoffman
    4. Scott D Rosenberg
    4 lawyer answers

    The 13100 affidavit does not protect against creditors' claims. As part of the declaration you agree to indemnify the person or company turning the property over to you from any claims that might arise. As for a "new" 1 year statute of limitations, you're confusing apples & oranges. If the statute has already expired before the person dies, it does to somehow get resurrected ... the 1 year statute of limitations you are referring to is found in California Civil Code section 366.2. It...

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  2. Interspousal Deed

    Answered about 6 years ago.

    1. Janet Lee Brewer
    1 lawyer answer

    You can fill out an Interspousal Grant Deed and a "preliminary change of ownership report" (PCOR) and file them in the county recorder's office in the county where the property is located (if it's San Mateo County, then it's in Redwood City, near Veteran's Blvd. & Middlefield). You can find a sample of an Interspousal Deed here: www.investorstitle.com/forms/Interspousal_Deed.doc (I don't like the format, but it has the correct 2008 Notary Acknowledgment language - if you use an older form...

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  3. My father had a living trust and a will. Does Will have to be filed in Court - value of his personal property is less than 100K

    Answered about 2 years ago.

    1. Janet Lee Brewer
    2. Bruce Givner
    3. Steven J. Fromm
    3 lawyer answers

    I'm sorry about your father's death. In California even if someone has a living trust, the California probate code requires that the original of the Will be "lodged" with the probate court in the county where he resided. In my office, we take the original Will to the court along with a photocopy. The court keeps the original and stamps the photocopy as "received". You are correct that the A/B allocation is necessary in the event of an IRS audit. The assets should be retitled into the "...

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  4. How do you change the title of a property when the owner has died (intestate) without going through probate?

    Answered over 2 years ago.

    1. Janet Lee Brewer
    2. Frank Wei-Hong Chen
    3. Steven J. Fromm
    3 lawyer answers

    I disagree with both Mr. Chen and Mr. Fromm to a limited extent. If the house is worth less than $50,000 you may be able to use an affidavit procedure to transfer title (see: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=13001-14000&file=13200-13210 ) If the house is worth more than that, then Messrs. Chen and Fromm are correct. If your husband's grandmother's probate was never completed, then you will need to do a "double probate" (that is, you will need to probate the...

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  5. My brother moved into my dads house a few mths after my dad passed. I am being named administrator. what should i do

    Answered over 2 years ago.

    1. Janet Lee Brewer
    2. Steven J. Fromm
    2 lawyer answers

    Legally, your brother is now an owner of the house (unless a will or a trust says he does not share in the estate). Therefore, you cannot evict him - eviction is only for renters, not for owners. In addition, under California civil code section 843, you have no right to collect rent from a co-owner. If you want to get him out of the house, you will either need to negotiate with him or bring an action for "ouster" or "partition". If you've been trying to probate the estate yourself,...

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  6. Taxes and probate

    Answered almost 3 years ago.

    1. Janet Lee Brewer
    2. Steven M Zelinger
    2 lawyer answers

    A properly prepared trust accounting is very specific - $0.03 interest earned on Bank of Dad Account #12345, $321.43 paid to Franchise Tax Board, etc. And if the accounting will be presented in San Francisco Probate Court, I'm virtually 100% certain the probate examiner will have reviewed it with a fine tooth comb (in an accounting I filed recently, they even noticed that one month's interest hadn't been recorded and asked what had happened). As for whether you should take the accounting as...

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  7. What is the process for amending a revocable trust?

    Answered almost 3 years ago.

    1. Janet Lee Brewer
    2. David L. Carrier
    3. Steven J. Fromm
    3 lawyer answers

    Unfortunately, financial institutions are becoming more and more difficult to deal with. Although I would be happy to assist your mother in amending the trust (my office is in Palo Alto), I suspect that's not really necessary. If your parents' trust is like most, it splits into 2 (or more) shares after the first person dies. I suspect that all of the necessary language is contained in the trust that your mother already has.... she may need to have someone highlight that language for her...

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  8. Does a Calif. home placed in Joint Tenancy with Right of Survivorship still qualify for Prop 13 & 58?

    Answered over 3 years ago.

    1. Janet Lee Brewer
    2. Scott Douglas Jordan
    2 lawyer answers

    Adding your name to the deed would not result in the loss of Prop. 13 status, but it might very well result in the loss of some significant capital gains tax breaks. It would also be a gift and require that she file a gift tax return. In addition, I never recommend adding a child's name to a deed ... it would make you an immediate owner of the property. If you got into legal problems, your creditor could seize your interest in the house and force its sale. If your mother wants to avoid...

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  9. Can my mother be capable of making her own decisions while having a Power of Attorney?

    Answered almost 4 years ago.

    1. Janet Lee Brewer
    2. Henry Daniel Lively
    2 lawyer answers

    As Mr. Lively stated, someone would need to read the POA document to determine what it says about your mother's rights. However, I've encountered situations where people who are given the right to make decisions under a POA mistakenly believe that the person who signed the POA automatically surrenders the right to make his/her own decisions. The only time a person does not have the right to make his/her own decisions is when they're incapable of making them (that is when they're incompetent)....

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  10. Life insurance beneficiary and wills

    Answered about 4 years ago.

    1. Janet Lee Brewer
    2. Robin Mashal
    3. Gregory Paul Benton
    4. Daniel Kenneth Printz
    5. Karen Marguerite Brown
    5 lawyer answers

    I am sorry about your father's death. Ordinarily the beneficiary of the life insurance policy is entitled to 100% of that money. Anything that passes through his will would be divided 3 ways (after you get repaid the money you spent). But it would be necessary to look at the language of the will to see if he actually meant that the insurance money was to compensate you for what you spent and that everything that passes through the will gets divided 3 ways. The information you obtain at...

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