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Robert Paul Bergman

Robert Bergman’s Answers

206 total


  • My husband is the trustee to his father's estate. He is selling his house but the title company is asking for irrelevant docs.

    My husband's dad named his ex-wife as his original trustee (they had been divorced for years before the trust was created). When he died, she signed it over to my husband, who had been named second in line. Now he's selling his dad's house & the t...

    Robert’s Answer

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    It is possible that your father-in-law's ex-wife appears on the current title of the house as she was the original trustee. The fact that she signed over the trust to your husband would not automatically change the actual title on the house, which may still reflect her name as the trustee. If that is the case, some legal action needed to be taken to clear her name off of the title of the property.

    The title company should be able to explain just why they need the ex-wife's death certificate. The reality is, if you don't provide the information requested, the title company will not issue title insurance on the sale, which will stop the sale from happening.

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  • Need wil advice

    my mom died but did not leave a wil . She got married but he is not my dad. She said she was putting the house in my name and he was not getting anything. I am the only child but not his. The house was wiled to her by my grandma but.Now the husban...

    Robert’s Answer

    First of all, you need to determine how the deed to the property is currently titled. If you mother added your stepfather to the title as a joint tenant, he now owns the property. If she added his name to the title as community property, he also now owns the property. If she kept in her name alone, it is likely (but not automatically) her separate property.

    If it is your mother's separate property, how the house is now owned will be determined by the California laws of intestate succession (i.e. who receives the property of someone who dies without a Will or living trust that owns the property).

    If the house is determined to have been your mother's separate property under the law, separate from her marriage to your stepfather, then if you are the only child of your mother, you would be entitled to 50% and your stepfather would be entitled to 50%. If you have at least one other brother or sister, then you and your siblings would be entitled to share two-thirds of the property interest, and your stepfather would receive the remaining one-third interest.

    You should consult with a local estate planning attorney right away to review these issues and advise you.

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  • Mom left a Living Trust. House is currently under her name. What needs to be done to change ownership or sell the house?

    Parents lived and owned a house in California. Dad passed years ago. He left a Will where he stated that his portion of the house (50 %) will be equally divided amongst his 5 children. It also indicates tenancy in common. Mom passed months ago an...

    Robert’s Answer

    There is not enough information in your question to give you a definitive answers. You indicate that the house was tenancy in common, but that your mother had a living trust. You also indicate the house is currently under her own name (presumably not in her name as trustee of her living trust).

    Depending on how the property is titled and who is in charge of your mother's living trust now, selling the property may involve selling through the trust, or a Probate may be necessary. Either way, you need to consult with an estate planning attorney right away to sort how the details.

    I am down in San Jose, which may be too far for you to travel. If not, I could assist you.

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  • What CA case law or CA codes support the legal property description controls rather than address, in a deed or deed of trust?

    What if any, California codes or case law support that a legal property description controls rather than an address or APN in a deed, grant deed, or deed of trust?

    Robert’s Answer

    The general answer to your question can be found in Civil Code Section 1092, which provides as follows:

    1092. A grant of an estate in real property may be made in
    substance as follows:

    "I, A B, grant to C D all that real property situated in (insert
    name of county) County, State of California, bounded (or described)
    as follows: (here insert property description, or if the land sought
    to be conveyed has a descriptive name, it may be described by the
    name, as for instance, "The Norris Ranch.')

    Witness my hand this (insert day) day of (insert
    month),
    20___.
    AB"

    The operative part of this statute is that the property description must be in the transfer. In other words, there is no legal requirement that you identify the property address or APN of the property in order to have a valid transfer. The only thing you need is the property description.

    For example, I had a deed returned from a County Recorder because the legal description was inaccurate, even though the property address and APN were accurate. A much earlier deed had incorrectly identified the Lot number in the legal description, which actually described the adjacent property. I used that legal description for the new transfer. The earlier deed had been accepted for recordation by the Recorder in that county, which they admitted to me was an error on their part. A correction deed was necessary to get the title transferred, and I also prepared and filed a Quitclaim Deed so that the legal title of the adjacent property was not impaired in any way.

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  • What evidence or how I can prove I have a case for IIEI for family home promised by parents to brother and I.

    My first concern although not recognized was Trustee prevention of selling family home telling me she will ask my mother but never told me and ignored me after receiving Trustee letter for reason. How I discovered this is when my mother gave me pe...

    Robert’s Answer

    Your fact situation is very unclear, and there is no real way to even begin to provide an answer for you.

    You need to sit down with an experienced estate planning attorney in your area so that everything you have referenced can be read and considered. A good choice would be an attorney with WealthCounsel, a national association of attorneys that specialize in estate planning. I have provided a link to estateplanning.com, a website where you can look up attorneys in your area to consult with.

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  • My boyfriends mother passed away on August 30, 2013. He received a Will and a Trust and he and his sister are named co-trustees

    The Will and the Trust are dated as done in Sept. 2004. He is confused, can Wills and Trusts work together or are they two separate things? Him and his sister are both named in the trust as co-trustees. In the will the assets are itemized. The...

    Robert’s Answer

    Based on the few facts you have stated, it appears that your boyfriend's mother decided to leave certain of her property through her Will, while leaving her residence through her living trust. If the Will provides that anything not distributed by the Will is instead directed to be distributed to the living trust, then anything not itemized in the Will is to be turned over to the living trust to be divided equally between the two children.

    Your boyfriend needs to have the Will and the living trust reviewed by an estate planning attorney to determine exactly what both of those document say about his mother's residence and her personal property (i.e. bank accounts, brokerage accounts, furnishings, etc.)

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  • Heggstad Petition- Real property sold out of trust but funds from sale not in trust name

    Decedent owned real property in California held in her trust. Decedent sold property. Funds from sale were placed into a brokerage account. Brokerage account was never re-tiled in name of trust. If the drafting attorney provided declaration th...

    Robert’s Answer

    A Heggstad petition should be the best course of action. The fact that the real property that was sold was a trust asset is an important fact. If there is a pour-over Will that directs all property to the living trust after death, that is an important general transfer document as well. If the real estate was listed on a schedule of assets that is also important. If the brokerage account was listed as a trust asset on a schedule of assets (even if not actually titled in the name of trust), that would be a definite fact in favor of a Heggstad.

    Depending on the county where the decedent was resident, a Heggstad petition could be the most cost-effective and quick way to get the brokerage account moved into the trust.

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  • My father has not signed the will & family trust he had drawn up 14 mo ago what will happen if he dies before he signs?

    He owns 4 properties and has approx 100k, there are 4 of us and it is to be divided evenly with the exception if my handicapped brother's who's will stay in the trust. We are concerned about the length of time it could be tied up and how that will...

    Robert’s Answer

    If your father does not sign his estate planning documents before he dies, then his estate will pass under the laws of intestate succession. If there are just the four of you children and your mother is not living and there was no child of your father that died leaving one or more children or grandchildren, then it would be divided equally between the four of you. However, it would have to go through the Probate Court, and the share for your handicapped brother could end up interfering with any government assistance that he may be currently receiving.

    Bottom line. The estate plan needs to be signed and put into effect immediately to avoid these results. Additionally, the properties need to be transferred into the ownership of the trust at the same time.

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  • If there is a surviving sole trustee and the home thought to be in trust was not, is it necessary to file a heggstad petition?

    was taken out of trust to refinance and never put back. husband dies, but wife is now sole trustee

    Robert’s Answer

    The only way to actually answer your question is to see a copy of the trust itself, any assignment of assets to the trust, and schedule of assets for the trust, and how the property is currently titled.

    I am in San Jose, and I would happy to assist you with this matter. A Heggstad petition may or may not be necessary depending on what the above documents reveal. I offer free consultations, which can be booked directly through my website.

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  • Is a Heggstad petition the only option to fix a hiatus in the legal description of a decedent's trust?

    My late great uncle made a trust to convey three adjacent lots which he purchased in 1935. The legal description in Exhibit A of his trust has a hiatus -- the legal description for the middle lot is missing. The legal description was copied verb...

    Robert’s Answer

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    Ultimately, if the title company insists on a Heggstad petition, you are stuck, because they are the ones issuing a policy of title insurance to insure that the legal title that is being transferred is, in fact, valid and supported by the record.

    With the facts that you have described, it appears that you have more than sufficient evidence to support the granting of a Heggstad petition. The fact that the courts are backed up in San Francisco for hearing dates may not be an issue, however, because a Heggstad petition in San Francisco County should be able to be pursed on an expedited "ex parte" basis. Ex parte means that no formal hearing date is necessary as long as the petition is submitted to the court for consideration and all persons affected by the petition either join in the petition or sign a waiver of notice and consent to the petition itself. This would generally include the trustee(s) of the trust, and the beneficiaries of the trust itself.

    Clearly nobody would object to the Probate Court signing an order declaring the middle lot to be owned by the trust, and a certified copy of this order could be submitted to the title company to back up the issuance of the title insurance so that lot can be sold.

    I recommend you contact a WealthCounsel member San Francisco attorney through the consumer portal, www.estateplanning.com such as Peter Myers or Kevin Urbatsch. They should be able to assist you.

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