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John Crandall Foster

John Foster’s Answers

19 total


  • Living trusts

    Is a will required with a living trust?

    John’s Answer

    While having a will with a living trust is not strictly required, it is strongly. The will is necessary to transfer any assets into the trust in the event an asset is not properly titled in the name of the trust at the time of death. If an asset is not in the name of the trust at the time of death, and there is no will, then the asset will pass according to the law of intestate succession as established by law - which may not be the same as the terms of the trust. That is why a qualified attorney will include a will with the trust as part of your total estate plan.

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  • What are the life insurance beneficiary laws in CA?

    My brother, who died recently, changed his beneficiary about 6 months ago on his life insurance to our mother. He took his wife off of it. I've since been hearing that in the state of CA your not allowed to do this without first getting the writte...

    John’s Answer

    Depending upon how the life insurance was paid for may effect the ownership rights on the policy. Frankly, this is an area that is very fact specific, so spending a little time with an attorney to review the facts will give you a clearer answer to your question.

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  • Do I need a probate attorney? How can I get a Power of Attorney after a person has passed away? (Doesn't seem possible).

    My mother needed money and pawned my grandmother's ring. After several months, she passed away. My brother and I have continued to pay the pawn shop for the ring. I want to get it out of the shop because of sentimental value, but the pawn shop wan...

    John’s Answer

    California has a summary probate declaration for assets less than $100,000. A proper declaration pursuant to Probate Code Section 13100 would be a place to start. Technically, the pawn shot should accept it, but often they do not. That is where you might need counsel to explain the situation to the pawnshop.

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  • Can beneficiaries of a trust borrow money from that trust before they reach the age at which they are to inherit their portion?

    Can a beneficiary of an irrevocable trust (creators have died) borrow money from the trust for an emergency before they reach the age (25) at which they are to inherit? Or, from another direction. Can a trustee lend money from the trust to a benef...

    John’s Answer

    As a general rule, a trustee can loan money to any party - so long as it is reasonably secured and meets the requirement of the prudent investor rules.

    Remember, that where there are multiple beneficiaries, the trustee has "a duty to deal impartially with them and shall act impartially in investing and managing the trust property, taking into account any differing interests of the beneficiaries." Probate Code 16003. Hence, before doing any loan to a beneficiary, the trustee should certainly consult with an attorney.

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  • My mother has a Revocable Living Trust made up in 1999, first question; should it be update?

    Second question; the deed is in Joint Tenants with her 2 daughters, she was thinking about changing the Deed to her name only, and will it to her daughters. What steps are needed to make the change?

    John’s Answer

    My standard advice is to have the estate plan (which would include will, trust and other documents) reviewed at least every five year and more frequently if you are older. In this case, I believe the title on the deed - as joint tenants - strongly indicates that you should have the estate plan reviewed. A joint tenancy deed indicates that the real estate is not properly titled in the trust. In addition, there are other issues you raise in your second question which indicates that a meeting with an attorney is strongly recommended.

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  • Paying my elderly mother's bills

    My mother is beginning to suffer from dementia, can no longer responsibly pay her bills and is rapidly losing the ability to take care of herself. Ultimately, I think I will need to become the conservator of her estate but in the interim, I have h...

    John’s Answer

    I am sorry to hear that you are having to deal with this process. It can be very difficult, especially if you are having to deal with it remotely.

    If your mother still has sufficient capacity, she could give you signing authority on her accounts by simply going to the bank. She can do this on her own. Once you have that authority, you should be able to obtain online access to the accounts and you can then you pay the bills that way as well as being able to write checks. You might also see if your mother prepared a power of attorney for asset management that gives you the power to manage her affairs.

    If your mother has no capacity and no power of attorney, then you may be forced to get that conservatorship sooner rather than later. I hope your mother has done some estate planning so that you have the tools to accomplish what you need.

    Finally, if there is a living trust, that can also be an approach to gaining access to the accounts if the accounts are properly titled in the name of the trust.

    One other issue you may want to consider is whether your mother has granted to anyone the power to make medical decisions for her.

    If she is in the early stages of dementia, she may still be able to make these decisions and create the necessary documents. A conservatorship is often not a preferred approach if you can have the proper documents prepared.

    Best wishes for you.

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  • If you have a will, do bank accounts with pay on death designations count?

    My mom left 7 bank accounts - and there are up to three names on each -- representing each of her 3 kids. The overall funds are not evenly divided. She also left a hand written will. The $ in the will is not divided evenly either - it's 36%, 3...

    John’s Answer

    I am assuming your mother lived in California at the time of her passing. As a general rule, the designation of a beneficiary on the bank account takes precedence over the designation in a will. The will is usually intended to be used to dispose of those assets that do not have a beneficiary designated for them. Therefore, based upon what you have told us, it would appear that those bank accounts with beneficiary designation will pass as your mother designated on the account. It an account does not name a beneficiary, then it will pass pursuant to the direction in the will.

    If an account does not have a beneficiary, then a probate may be required unless the accounts that would be probated total less than $100,000. If so, then they can pass through a simple declaration process.

    With regard to the ultimate division between you and your siblings, you could do some gifting. Be advised, however, that gift could have gift tax implications for you depending upon the amount of the gift.

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  • Is my mother responsible for probate costs

    My stepdad passed away. My mother is not a party to his will. Does she have to pay the probate costs? This is in CA

    John’s Answer

    As a general rule, probate costs such as legal fees and administrative costs are paid out of the assets of the probate administration. If your mother is a beneficiary of your stepfather's will, then she would be sharing the costs as the beneficiary. In other words, your mother would not have to bear those costs in her individual capacity in the normal course of a probate. There are times, however, where a somebody might pay the costs of administration in order to resolve an issue and where there are insufficient assets to pay the costs of administration out of the estate.

    I hope this answers your question.

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  • What is the legal responsibility of the PR to others noted in the will?

    My mother and her husband largely kept their estates separate during their 20 year marriage. His living trust and will was poorly crafted AND he appointed his greedy daughter as PR. Since his death 4 months ago, she has not contacted my mother. ...

    John’s Answer

    A trustee and a personal representative have a fiduciary duty to the beneficiaries of trust and an estate. Amongst those fiduciary duties and a duty to communicate in a timely manner as well as to expedite the administration of an estate. They also have certain duties that must be fulfilled within certain time limits. I cannot determine the scope of responsibility based upon what you have set forth, although I can tell you that you have a lot of very good questions, all of which really require the advice of counsel. I strongly urge you to contact an attorney who can help represent your mother's interest and preserve her rights.

    This information is not intended to substitute for professional legal advice and does not create an attorney-client relationship. You should accept legal advice only from a licensed legal professional with whom you have an attorney-client relationship.

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  • My father past away and left me one of his houses but he didnt have a chance to transfer names before his passing what do i do ?

    trying to get a new deed for the house he left me and i am being told i need to probate the house first

    John’s Answer

    I am sorry, but I have to confirm what you have been told. So long as it is real estate (real property), If your name is not on the house, and there was no living trust, then you are probably stuck with having to do a probate to get the house distributed to you. There are some exceptions for property of very low value, or if it was a moblehome that did not involve real estate, but there is still going to be some paperwork required.

    Best of luck.

    This information is not intended to substitute for professional legal advice and does not create an attorney-client relationship. You should accept legal advice only from a licensed legal professional with whom you have an attorney-client relationship.

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