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Janet Lee Brewer
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Janet Brewer’s Answers

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  • When we make a will or change a will each time? Do we should put "LAST" word in front of " WILLS"?

    Shall we put "LAST" word for "Wills" even if it is the first "WILLS"? Please advise. thanks

    Janet’s Answer

    As Ms. Sinclair states "ttorney's don't sell pieces of paper; they sell services".

    If you aren't sure of the legal reasons for calling your will a "last will", it seems to me that you don't understand some of the fundamental issues that you need to know to make sure everything passes to the people you want to pass your things to at the time of your deaths.

    Most lawyers don't charge a lot of money to set up a will. I urge you to see a competent estate planning lawyer. And remember, there are no "do-overs" if you don't do this correctly before you die.

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  • My father passed away he has no beneficiaries on his bank account my uncle try to collect won't give any in

    That say there's a living trust for life insurance only for my uncle. He has already empty his home and will not give me any information on if there is a will or trust.

    Janet’s Answer

    • Selected as best answer

    I'm sorry about your father's death. If your father's estate is worth $150,000 or less then you (and your siblings) can collect the bank account by using a "small estate affidavit" UNLESS your father named someone as his "pay on death" beneficiary (in that case the POD beneficiary is entitled to the account). If the estate is worth more than $150,000 then it will need to be probated (unless all of the assets are held in a living trust - it's unclear from your question whether there's a trust or not).

    I urge you to contact a probate lawyer in the city where your father lived.

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  • My wife and I have two children and we want a proper estate plan/trust. We are in the US on visas and unsure of our options.

    We have lived in the US for 4 years, our children were born here and we own a house. We also own life insurance policies. My friend said we might get the full estate tax exemption but I saw our exemption might only be $60,000 since we're nonreside...

    Janet’s Answer

    I respectfully disagree with Bob Bergman. Even though you would be considered "residents" for income tax purposes, "residency" is irrelevant for estate and gift tax purposes. The estate and gift tax sections of the Internal Revenue Code deal with "domicile" - and by definition, a non-resident alien is not domiciled in the United States (in fact, there have been cases where the Courts have held that a green card holder is not domiciled in the US for estate tax purposes).

    This is a highly specialized area of estate planning. It is one in which I have experience. My office is in Palo Alto, and I would be happy to assist you with this.

    To address your particular question, when you are a non-resident alien, only assets that are considered to have a "U.S. situs" are part of your estate ... and it's interesting to learn what is not a "U.S. situs" asset.

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  • Do I need estate lawyer?

    My father's will said assets divided 50-50 between me and my brother. A cd account had my brother only listed as beneficiary. He says the money in that account is his alone. Does the money in that account go into the estate to be split?

    Janet’s Answer

    I agree with Mr. Green. This is yet another example of why "do it yourself" estate planning is a bad idea.

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  • My Grandparent passed away 30 years ago and his house never went through probate. There was no will, so how to proceed now?

    My Grandfather passed away almost 30 years ago. He didn't leave a will and his house never went through probate. My Aunt has been living there as well as some of his great grand children. I would like to start probate now as the occupants have...

    Janet’s Answer

    You definitely need a lawyer to assist you with this, as the other lawyers who answered your question said.

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  • How do I amend Probate forms if I put the wrong person to be the Sole Administrator/Executer of my passed mothers estate

    My mother passed w/ no will in place, she is survived by 4 children w/ a big estate. She put me as the POD on her bank account & i've been the only child to stay with her during her terminal 4 lung cancer. I have been living in her home for a ...

    Janet’s Answer

    You can file an amended petition and list yourself as both the petitioner and also as the person being nominated to administer the estate ... assuming that the hearing date has not already occurred.

    You indicate that you want to be the "sole executor/administrator" and also the "trustee". If your mother had a trust, then only the person named in that document as the "successor trustee" can be the trustee. If your mother didn't have a trust, the probate court will not create one now.

    Although there are many reasons for wanting to be the executor/administrator/trustee of a person's estate, I suspect that one of your reasons might be that you think if you're in charge, you can do what you please and not have to distribute anything to your siblings. That's not going to fly....

    It also seems to me like you're trying to do this yourself. As you can already see, it's not quite as easy as one might think. I urge you to get a competent probate lawyer to assist you.

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  • Can my overseas parent co-invest in a house

    i wish to buy property but dont have enough funds. can my parent, who is a non-US resident, invest in the property with me?

    Janet’s Answer

    As Mr. Shultz indicates, your parents can certainly invest in a house with you - but it might result in their having to pay estate taxes in the US if the transaction isn't set up properly. Likewise, if they were to decide to make a gift of their interest to you, it could have significant gift tax consequences.

    My office is in Palo Alto, and I provide international estate planning services. I would be happy to assist you in this matter.

    You might want to download my free guide on this issue: http://www.calprobate.com/NRA/#

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  • When do we need a Trust and how much shall we expect to pay (CA resident)?

    We have a residence valued at 1.3 Million and have about 500K in cash and 400K in retirement funds. Is a Will sufficient or should we establish a Trust. What type and how do we best go about it? What fees should we expect to pay?

    Janet’s Answer

    If you pass away and your house isn't in trust, the executor and the attorney would each be permitted to charge approximately $31,000 as probate fees, whether the probate was quite simple or fairly complex ... and it was complex, they could probably charge "extraordinary" fees in addition to the $31K of "regular" fees. As a ballpark estimate, a trust would probably cost $2500 - $5000 depending on the complexity of your situation (age & maturity of your heirs, special concerns, etc.).

    In addition, in California it's not unusual for a probate to take well over a year while a trust could probably be settled in days or weeks (but note - I usually recommend that the trustee not do things hastily, so unless there's a single heir and no potential problems at all, there's a process and it's not instantaneous).

    There are many competent estate planning lawyers in the Palo Alto area. Choose the lawyer that you and your family feel the most comfortable with.

    My office is in Palo Alto, and I'd be delighted to meet with you.

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  • Husband won't add me to his will!!!!

    He says it's because he doesn't like to talk about death, but husband won't add me to will. We have been married 3.5 years. Every time I ask him about it, he says he will do it soon. Legally, I would like to know what happens if he dies. He ha...

    Janet’s Answer

    If your husband does not want to plan for you and your son, then you need to. I suggest you look into purchasing some life insurance on his life (you would own the policy so you are sure that the premiums are paid and that he cannot change beneficiaries). If you do decide to buy insurance, make sure you get either a 15 - 20 year "level premium term policy" or a universal life policy or a whole life policy (which is probably prohibitively expensive). A good insurance agent should be able to help you decide which type of policy would be best. Your husband will need to get a medical exam and he will have to sign documents giving you permission to own the policy.

    You should also make sure you have your own will (and/or trust) in place to provide a guardian for your son if both you and your husband were to die and also to make sure that your estate passes to your son.

    My office is in Palo Alto. If you'd like my assistance, please contact me.

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  • If the executor in a probate case sends an email out stating they are not going to take the fee is this binding?

    !) Executor sent out an email a year ago stating that they are not taking the fee. All beneficiaries are copied. Not the attorney handling the probabe. 2) Now, that the assets are all sold, she is saying she wants her fee. What's with that?...

    Janet’s Answer

    The California probate code states that the executor is entitled to a fee. At the beginning of a probate case, executors have told me that they won't take a fee many times ... but by the time the petition for final distribution is filed, they've changed their minds - they didn't realize just how much work was involved in probating the estate and they want to be compensated for it.

    In California the executor's fee for "ordinary" services is based on a formula. The fee in a $500K estate, for example, would be $13,000 for the executor and the same amount for the attorney (so $26,000 total); if the estate was worth $1MM, the executor and the attorney would each be entitled to $23,000 ($46K total) as their fees for "ordinary" services. If there was extra work - such as having to sell real estate or deal with an IRS audit - the executor and the attorney also have the right to petition the court for "extraordinary" fees.

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