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Keith A Davidson

Keith Davidson’s Answers

128 total


  • Attorney-client privilege rules - what more can I do?

    Keith’s Answer

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    I agree, and you may have to file in Court to either (1) declare dad incompetent so the successor trustee can take over, or (2) have a conservator appointed that can then exercise your father's rights under the Trust. Either way, it is a tough road in front of you if your father is not willing to admit that he has a problem and needs help. Good luck.

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  • Dad passed and My oldest brother became trustee of the Family trust.. Also appointed power of attorney for my mother by sister.

    Keith’s Answer

    I agree with the answer above, except that a child who is a remainder beneficiary can hold the Trustee accountable while mom is alive IF mom lacks capacity. Does your mother still have capacity? IF not, then you can bring an action now to seek enforcement of the Trust terms, move the assets back into the Trust, and do whatever is necessary to make this situation right.

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  • Mom had a living trust when she died in February. Can I use a fiscal date Jan 2014?

    Keith’s Answer

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    Technically, your CPA is right that a Trust is required to have a calendar year. BUT a Trust can elect to be treated as an Estate (as in a probate Estate), and an Estate can have a fiscal year starting on the date of death. So you just need to elect to have the Trust be treated like an estate and then use a fiscal year that starts with the date of death in February. Form 8855 is the correct form to use to make the election and use the fiscal year option. The fiscal year will not start in January however.

    Hope this helps.

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  • Is an estate (home) which is taken out of a revocable living trust still governed by the trust?

    Keith’s Answer

    • Selected as best answer

    Was your father a beneficiary of your grandmother's trust? Was he allowed to receive the house outright or was it left in Trust for your father's benefit? This makes a big difference. If you father was either an outright beneficiary of the house or if he had a right to distribute the house to himself, then you would have a right to some portion of the home as an heir-at-law of your father. If your father was required to keep the home in the Trust, then the beneficiaries of the Trust would have a right to obtain the house by claiming that your father breaches the Trust terms by transferring the house out to himself. However, they would have to make that claim against your father's estate and they would only have one year in which to do so.

    In the end, it depends on what the trust says and what the successor beneficiaries of the Trust do to try to obtain the house. You definitely should sit down with a lawyer to review the documents on this one.

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  • Does community prop. of a married couple automatically go to wife when husband dies?

    Keith’s Answer

    The one thing I would add is that if property is held as "community property with right of survivorship", which is available in California, then the property does pass to the surviving spouse automatically upon death without the need for Court involvement. Any other community property (i.e., anything that is NOT titled with right of survivorship) requires a petition as explained in the answer above.

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  • What is the quickest way for an estate administrator to recoup his or her expenses?

    Keith’s Answer

    I don't mean to disagree with the other answers, but in California an Executor can pay themselves back from expenses (EXPENSES ONLY) out of the estate without Court order and without filing a creditor's claim. Just make sure you have a proper receipt for the expense you are reimbursing.

    However, when it comes to your fee as an Executor, that does require a Court order before payment can be made.

    I do see many attorneys wait to pay expense reimbursement until the Court orders it, just to be on the safe side, I guess. But nothing in the law precludes an Executor from reimbursing a litigate Estate expense.

    This does NOT apply to claims against the decedent by the Executor. If the decedent owed the Executor a debt PRIOR to death, then a creditor's claim must be filed, and it must be approved by the Court prior to payment.

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  • In Riverside County, CA my step-father's mother died with a will/living trust.

    Keith’s Answer

    I agree with the other responses. I would add that the only way to force your brother to share the property is to go to Court. The Trustee should not have distributed the real property only to your brother, that is a breach of trust. And your brother should share the property. But if they both refuse to talk to you, then Court is the only answer. You may be able to file a petition in Court on your own, but it does take some knowledge of the proper procedure.

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  • What are the ramifications of my mother changing her Living Trust to 3 executors (siblings) rather than the one she assigned?

    Keith’s Answer

    Don't use 3 co-trustees. That is my advice, it's just too much to coordinate and causes way too much conflict. There may be exceptions when 3 co-trustees are appropriated, but most of the time it just causes more problems then it is worth.

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  • How to Ensure Inheritance Is Truly Separate Property In the Event of Divorce?

    Keith’s Answer

    You are on the right track. Filing a joint return will not, in itself, cause the asset to be comingled. You should talk to your CPA or tax preparer on the best tax form to file, but married filing joint anticipates all income you receive, both community and separate income.

    As far as documentation, just keep a file with the original amounts you receive, what accounts they were deposited into, and any changes in those accounts as you move forward. As long as you have a clear trail from inherited money to where you are today, you'll be fine.

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  • Administrator vs special administrator

    Keith’s Answer

    You want Administrator. A special administrator is only when you need an emergency appointment. Their powers are limited and usually expire in a set time period.

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