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Robert Paul Bergman

Robert Bergman’s Answers

204 total


  • When 1 spouse is named as the Trustee of a Revocable Trust are the trust assets considered part of a divorce settlement?

    I live in CA. I have been married to my spouse for 11 years and lived together for 7 years prior to that. In January of this year, my mother-in-law passed away, she had a 'Revocable Trust’, and my spouse was named the Trustee. All of the assets...

    Robert’s Answer

    Your question involves the intersection of family law and estate planning law.

    Money and property inherited by a spouse in a marriage in California is legally the separate property of the spouse who inherited the property, and there would be no division of the property in a subsequent divorce, provided the inheriting spouse did not "mix" the property into the marriage. On the other hand, if the inheriting spouse were to die while married, and no planning was done for the inheritance that may have been received directly, then a surviving spouse would be entitled to a share of the separate property of the now deceased spouse who inherited. How much that share would be is based on whether or not their are children of the marriage, and how many children there may be.

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  • Is my husband commiting tax evasion.

    my husband was left a trust fund by his father when he died 7 yrs ago. his mother holds on to it and only gives him 10.000 dollors a year to avoid having to pay taxes on it . isnt this tax evasion, although he wants his money, he wont stand up to ...

    Robert’s Answer

    First of all, your husband's mother is confusing gift taxation with the distribution of monies from an estate. Your father-in-law's trust fund was an inheritance, and the $10,000 per year limitation is for gifts. The is no longer $10,000 for gifts. It is $14,000 per year. Tax evasion is not an issue here.

    Has your husband seen a copy of the trust created by his father? Without that, it cannot really be determined just what authority your mother-in-law has to make distributions from the trust fund. She might have complete discretion to make distributions, with no requirement that distributions be made at all. It might mandate distributions, or even require that everything be turned over to your husband when he reaches a certain age.

    The bottom line is this: To determine what, if any, rights your husband has, the trust agreement must be reviewed. Any other advice would be idle specultation.

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  • Can I use a quick claim deed to transfer title of my California home to a Revocable Living Trust that is also in my name?

    Home has a mortgage, title and insurance all in the names of me and my wife. The home was purchased after the trust was set up.

    Robert’s Answer

    Yes. A quitclaim deed can be prepared transferring ownership from you to your living trust. This can be prepared by you, a title company, or an estate planning attorney such as myself.

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  • I don't have a disability or illness which necessitates a Special Needs Trust. My mother had it made for financial reasons not f

    My mother had her attorney make a Special Needs Trust for me based on financial reasons not health or disability reasons. I am not ill nor do I have a disability. She wanted me to be able to take advantage of govt. programs like welfare and still ...

    Robert’s Answer

    A person can create pretty much any type of trust they wish with their own property. If you apply for government benefits to which you are not entitled, that is not legal. However, it is legal for your mother to create a special needs trust for you if she believes that it is necessary and appropriate.

    What you are called a "special needs trust" may, in fact, be a trust designed to make sure your current or ultimate inheritance is protected from creditors' claims, bad marriages, or other causes. Without viewing the trust itself, it is nearly impossible to comment further.

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  • Can parents of heirs consent on their behalf to modify an irrevocable trust?

    I found a probate code section (15404) that allows modification of an irrevocable trust with consent of ALL beneficiaries. But some of the beneficiaries are not born yet (my heirs). Can the parents of my heirs consent to the modification on their ...

    Robert’s Answer

    Whether a guardian ad litem with court action is actually needed is pretty court specific. Here in Santa Clara County, for example, I regularly obtain modifications of irrevocable trusts where the court is convinced that the interests of the minor and/or unborn children of existing beneficiaries can be protected by the parent who is a beneficiary.

    If you have doubts about this, you should consult with estate planning legal counsel in your country.

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  • Can my children under age 18 be added to title of home?

    Trying to preserve equity of house from mom's usage. Original verbal agreement was for it to go to children only. Mom wants to stay in house but cannot afford it. Wants free use of equity. Trying to preserve it for the kids as it originally was ag...

    Robert’s Answer

    The short answer to your question is, "no." Minor children cannot directly own anything, including an interest in a house. Minor children could be the beneficiaries of a trust where the trust owns a house, but not direct owners.

    As for the other issues you raise, unless your mother wishes to take some affirmative action to fulfill the verbal agreement, such as creating a trust that provides for the house to pass to your children, she can do whatever she wishes. If she cannot afford to keep the home, then she will have to take steps to either obtain a reverse mortgage, have family members pay her expenses, or sell the house and move to a more affordable home.

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  • Rental property held in joint tenancy with my father, his half in his trust, my half not in any trust. He now wants to sell.

    My father wants to sell the property. Should I set up trust for my one-half interest of property prior to sale reduce my tax liability on proceeds or does trust not lessen my tax liability? What type of attorney could best advise me prior to any ...

    Robert’s Answer

    • Selected as best answer

    I will start off by stating that it is legally impossible to own any property in joint tenancy between a trust and a living person. Trusts are not living persons, and a joint tenancy requires that ownership be by living persons. Regardless of what you and your father put on the title to the property when your father's half was transferred into his trust, legally you own one-half of the property individually, and your father's trust owns the other half, as "tenants in common."

    Assuming you and your father acquired this rental property at the same time and each of you contributed to the acquisition cost, your tax liability on sale of the property, which should be capital gains tax on any increase in value, will be unchanged regardless of whether or not the property is held individually by you or in a trust you have established.

    You should consult with an estate planning or tax attorney, or a CPA to confirm this.

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  • An aunt to leave all trust assets to her two nephews without losing all of the money and property to taxes. How to do that?

    Aunt and Uncle have no children but property and over $1 million cash. How can they avoid the nephews losing most of the value in taxes?

    Robert’s Answer

    Based on the brief description you have provided, if the total value of the property and cash is less than $5,250,000, there would be no income or federal estate taxation on the value of the estate. Moneys held in retirement accounts such as IRAs and 401k plans could be income taxable immediately, or the tax liability spread out over several years.

    For a complete answer, your aunt and uncle should consult with estate planning legal counsel wherever they live.

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  • A beneficiary of a living trust is a minor. Should the trustee have to set up a new trust in child's name or stay in original?

    It was property. Every other beneficiary has received their percentage and out of trust (minors also), but my children are still in original trust.

    Robert’s Answer

    If the original living trust provided for the minor's share to be left "in trust" for the minor, then a new trust would be created out of the original trust, including obtaining a tax identification number and identifying the fact in some way that the new trust is for the benefit of the minor. The original trust cannot continue as the same trust, because, presumably, the original creator of the trust is now deceased.

    More importantly, if the original trust does not leave property "in trust" for your minor children, then a guardianship will be triggered for the distribution of the property to them.

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  • Can an attorney withhold a will, from a deceased mother's family?

    An attorney helped write a will, at the death bed of a family's mother, leaving the property to the family. Now the attorney claims he is uncomfortable turning the will over to the family, because he says, the mother passed away and may not of kno...

    Robert’s Answer

    • Selected as best answer

    Agreed. California law requires the custodian (i.e. current holder) of a Will to lodge it with the Probate Court in the county where the deceased creator the Will (here, the mother) was a resident. There is a $50.00 fee charged for this.

    Depending on the nature and type of property owned by the mother, having a formal Probate of the Will may or may not be necessary. As a mortgage is mentioned, it is likely that a Probate will be necessary, as it appears that real estate is involved.

    If you could use some assistance, you may contact me. I am in San Jose on Saratoga Avenue, near Westgate Shopping Center. My website information is here.

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