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Robert Paul Bergman

Robert Bergman’s Answers

206 total

  • My mom has a last will and testement,Does my sister THE TRUSTEE have another document possibley I have not seen yet.

    My sister is not showing me anything.The last thing she saaaaid to me was HA HA YOUR BURNT.....

    Robert’s Answer

    Do you have a question to ask? If so, you are more likely to get an answer. An attorney would need to know the following: 1. Is your mother still living, or is she deceased? 2. You used the term "Trustee" to describe your sister. Did you hear that term from her, or someone else? 3) Have you seen any legal document signed by your mother? If you have seen her Will, does it refer to a trust of some kind receiving her property?

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  • Joint tenancy with rights of survivor ship

    My wives grandmother passed away last May. 11 years ago she wanted to buy a small house but did not have the credit to qualify so we co-signed. The house paid off 5 years ago. The house was held in Joint tenancy with rights of survivor ship, ...

    Robert’s Answer

    When a joint tenant dies, ownership generally passes to the surviving joint tenants as a matter of law. So, without any other factors, you would be the surviving joint tenant.

    However, in what you have described, it appears that from the beginning the property was intended be owned by grandma, and you went on the title for the sole purpose of co-signing on grandma's loan. As you indicated, grandma's entire estate consisted of the house and an old car. When grandma did her living trust, you indicate that she specifically left the house divided four ways between four of you.

    The problem you face is complex. The original acquisition suggests that you and your wife went on the title of the house only so that grandma could qualify to buy it. There is no indication that you and your wife and grandma ever intended anything other than grandma being the owner of the property. That is further evidenced by her creation of a living trust that specifically identifies the property and her intentions regarding its distribution after her death.

    You are likely being sued by your cousins or your the successor trustee of grandma's on the theory that you and your wife were holding your interests in the property "in trust" for grandma, what is sometimes called a "constructive trust," and that you don't actually have any beneficial interest in the property. If the court finds a constructive trust, then grandma's living trust will be able to receive the entire property so that it can be distributed as she wished.

    It is likely that the lawsuit references Probate Code Section 17200 and Probate Code Section 850(a)(3)(B), the latter permitting a case to be filed "where the trustee has a claim to real or personal property,
    title to or possession of which is held by another." The theory would be that you and your wife were only on the title for co-signing purposes, and that grandma actually owned the property the entire time since it was purchased. That would probably be supported by the circumstances surrounding the acquisition, facts about who paid the mortgage, property taxes, insurance and utilities, and who actually lived there in the property.

    The bottom line is, the fact of the joint tenancy is not the end of the legal analysis, but only one factor when a lawsuit as I have described above has been filed.

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  • Can a surviving spouse with a Revocable Living Trust "A-B" amend the trust to add a new spouse to receive previous assets?

    trust includes property, personal items, bank accounts, and burial plots

    Robert’s Answer

    The answer will likely change depending on whether or not you are talking about "A" trust assets, or "B" trust assets. The former are typically the assets of the surviving spouse, and amendment of that trust would likely be possible. The latter (B trust) is typically an irrevocable trust, and not changeable without court action and the consent of all of the ultimate beneficiaries of the trust. Presumably, those people would not consent to a change that leaves the property to a new spouse of the A trust owner (surviving spouse of original couple).

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  • Can you change a irrevocable insurance trust by transferring it to a new irrevocable insurance trust and change who the

    Benificieries are? Or is there another way to change benficiaries?

    Robert’s Answer

    The answer to your question is too complicated to answer on a site such as this. Under some circumstances, it may be possible to transfer an existing insurance policy from one irrevocable life insurance trust to another, or perhaps to have a second irrevocable life insurance trust purchase the insurance policy from the first trust. However, there are a whole lot of factors to consider to see if it is possible.

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  • Is Deed of Trust on jointly held property required to be maintained by lender if couple is divorced in California?

    Son is getting a divorce in California. His grandfather has a deed of trust with the married couple for their home. Does grandfather have to honor this deed if separation results in his wife retaining ownership of property?

    Robert’s Answer

    The short answer is yes. If the grandfather made the loan to both the grandson and his wife, then the loan doesn't become invalid just because there is a subsequent divorce.

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  • When does a trust become irrevocable?

    I became successor trustee when my father was found incapable of managing his finances, and my mother resigned as trustee. At that point, the attorney recommended a new certificate of trust and a new EIN. Everything is now in the new EIN as of 2...

    Robert’s Answer

    It appears from your question that your parents had a joint trust. Strictly speaking, if one of the trustors of a joint trust (e.g. your father) becomes incapacitated, the joint trust becomes irrevocable at that time, subject to your mother's possible right to revoke the trust as one of the original trustors and owners of the property in the trust.

    Now that your father has died, his portion of the trust estate remains irrevocable, and needs to be distributed by the terms of the trust. If, as you indicate, the trust has a discretionary AB split (which suggest some form of "disclaimer" trust planning), then there is still administration needed to confirm where your father's share of the trust property is now owned, even if it passes to your mother and stays in the trust for her exclusive benefit.

    In any event, a review of the actual trust document is the starting point for every answer. You should consult with estate planning legal counsel to determine what needs to be done to implement the trust's directions for your father's property.

    Whether or not anything needs to

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  • Does a B trust have to be created after my father's death?

    I am fiduciary/trustee for my parents' trust as of 2 years ago when my father was found incapable, and my mother resigned from the trust. At that time we got a new certificate of trust and new EIN. My father passed away late last year. I'm look...

    Robert’s Answer

    There is no practical way to answer your question without having a qualified attorney look at the trust document itself to see what it actually says. That's especially true if the language of the trust is ambiguous about the requirement to create and fund B Trust (also called a bypass trust, and several other names)

    If the trust requires the creation of a B Trust and requires funding it with your father's share of the trust property, it may be that there is real reason to do that from an estate tax standpoint. In that case, it may be possible for the family to petition the Probate Court here in Santa Clara County to remove the requirement that the B Trust be created and funded.

    You need to have the trust reviewed before any further action can be taken.

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  • Trust question

    Do assets in a irrevocable trust get a second step-up in basis on the death of the surviving spouse?

    Robert’s Answer

    Generally no, unless the trust granted a general power of appoibtment to the surviving spouse (not common).

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  • Does someone that received an inheritance under $10,000, in 2013, have to pay taxes on it & is it considered an income?

    My sisters & I received an inheritance from my deceased mother's IRA in 2013, which was under $10,000 each. The place that this IRA was being distributed from asked if we wanted any money to be withheld in case there were to be taxes needed to be...

    Robert’s Answer

    Distributions from IRAs are taxable income in the year received, with the exception of distributions from ROTH IRAs.

    The 1099 you received in the following year after the distribution was to inform you that you received taxable income, and taxes should have been paid for the tax year in which you received the distribution.

    The company making the distribution did withholding for you, and also provided with the necessary tax form. They had no obligation to advise you about your personal tax liability.

    You will owe the taxes and a likely penalty for failure to pay the taxes on time.

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  • Can a lg trust that was left to me have a trustee (currently a company) and a personal representative to look out for me?

    My grandmother died in 2000 and left a sizeable trust. I've done nothing with it since then as I have a good job I like, live simply, and didn't feel a need. The trustee changed a few yrs ago and we don't get along and I've felt he hasn't been l...

    Robert’s Answer

    The answer to your question at to whether or not you can replace the current trustee starts with the actual trust agreement. You will need to have an attorney review the trust agreement to see who has the authority to remove and replace the trustee, and to see whether you as the beneficiary have the authority toNo

    No simple answer can be given to your question without an actual review of the trust document.

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