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Robert Paul Bergman

Robert Bergman’s Answers

211 total


  • 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

    • Selected as best answer

    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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  • My mother's house was in a trust, but was taken out during a refi. She died before putting it back into the trust. Heggstad?

    We have trust documents listing the house as being in the trust. It just was never put back into the trust after a refinance of the loan ( she died literally days after the refi was complete). There would be nobody to contest the Heggstad petition...

    Robert’s Answer

    You are correct. This is one of the many reasons that a Heggstad petition would be appropriate. You should consult with legal counsel to have this prepared. I have provided a link to the consumer website for WealthCounsel where you can find local counsel who can assist you.

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  • I am currently being sued on a contract. I have $1 million in assets. Can I put the assets in an irrevocable trust to protect?

    I have several properties and I am thinking about selling them during my lawsuit. Can I take the money and give it to family members directly or put it in an irrevocable trust for them? I want to protect this money in the event I lose my lawsuit.

    Robert’s Answer

    If you are currently being sued, taking action to protect your assets now would likely be treated by a Court as an attempt to defraud your creditors, and any action you take would likely be set aside by a Court.

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  • Is there any protected amount of the real assets against creditor lawsuits in a revocable trust.

    Can creditors sue heirs for full amount of real property?

    Robert’s Answer

    A revocable living trust does not provide any asset protection whatever against creditors' claims.

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  • Step up in tax basis in AB trust

    After first spouse passed away, half of the house is administered into Exempt Trust B. Does it receive a step up basis so that the capital gain for the children (for 1/2 of the house) will only be the appreciation between the first spouse's death...

    Robert’s Answer

    You are correct. The half of the house owned by the surviving spouse directly will receive a step up in cost basis at the death of the surviving spouse. The half of the house in the Exempt Trust B would have its value fixed at the date of death value for the first spouse who died, and any future appreciation would be subject to capital gains tax if the house is in the future (i.e. the property could be sold while the surviving spouse is still alive, or after death.)

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  • Filling a Will when someone dies.

    I read that I, as executor, should file my mom's Will with the County Court where she lived. If the will is very simple (divide among four children), and the estate is about $500K, is this necessary? By the way there is a Living Trust to defer p...

    Robert’s Answer

    The requirement to "lodge" or file your mother's Will with the Probate Court in the county where she lived is a legal requirement found in Probate Code Section 8200(a). This must be done by the person who actually has the original Will, and done within 30 days of learning of the death of the person. There is a $50 fee for lodging the will, and the requirement does not depend on whether or not there is an actual probate that needs to be filed.

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