Skip to main content
Stewart R. Albertson

Stewart Albertson’s Answers

44 total


  • Trustee won't make formal split of a/b trust making "b" irrevocable, can he be removed for failure to perform all duties?

    Stewart’s Answer

    • Selected as best answer

    First, removing a trustee in California is difficult in most cases. And, even if you have the evidence, you have to go through filing a petition with the probate court to remove the trustee, sending written discovery to the trustee, compelling discovery responses where necessary, taking depositions, and ultimately preparing for trial. This will take anywhere from 6 months to 2 years. Almost for certain you'll need to hire an attorney to help you with this type of litigation. Best of luck.

    See question 
  • My brother is the executor of my mother's trust. He forged an amendment back dated 2012 that leaves him everything.

    Stewart’s Answer

    You'll need to file a petition to invalidate the 2012 Amendment in the Probate Court. This petition will likely be based on lack of capacity, undue influence, and fraud based on the facts you gave. In addition, you may want to file a civil lawsuit for financial elder abuse against your brother. To do both of these filings it is almost certain that you need to find a lawyer. This is not something that you will be able to do on your own. Best of luck.

    See question 
  • Should I have an attorney investigate whether or not I am named in my grandparents trust?

    Stewart’s Answer

    Send a letter to your mother asking for a complete copy of the Trust. Mention in the letter that California Probate Code section 16061.7 requires that all family heirs and beneficiaries of the Trust have a right to receive a full copy of the now irrevocable Trust 60 days after your grandmother died. There may, or may not, be a Last Will. If there is, it is likely a pour-over Will that gives everything to the Trust. Thus, it's important to get a full copy of the Trust to see if you are mentioned as a beneficiary. Good luck.

    See question 
  • May a lawyer charge additional fees for correcting and amending living trust errors he made.

    Stewart’s Answer

    I'd suggest talking to your lawyer about it. Be nice but firm. Explain why you don't believe you should be billed for the changes. Then propose an amount you would like credited back. That's the hard part--coming up with an amount. But if you do, there's a good chance the lawyer will work with you. Good luck.

    See question 
  • Can I sue a Dr. For messing up my thigh muscle during hip replacement.

    Stewart’s Answer

    While you may have a medical malpractice claim (which may be barred by the statute of limitations) you may have a defective hip implant. We lawyers call these "defective medical device" cases. If so, the statute of limitations (generally 2 years) starts to run from the time you know the medical device (the hip) is defective.

    You should consult with a medical device lawyer immediately to see if you can still file a claim. Sorry to hear what you've been going through.

    See question 
  • Can petition to have temporary trustee appointed be presented at same hearing as petition for removal of trustee?

    Stewart’s Answer

    I agree that you should ask your current attorney these questions.

    In my experience it is fairly difficult to persuade a probate court to suspend a trustee and appoint a temporary trustee pending trustee removal. This is especially true if you do not have an attorney.

    Looks like you have done the right thing by hiring an attorney to handle the suspension request. Good luck.

    See question 
  • How do I have my Mother removed as successor trustee of my deceased Grandmother's Trust?

    Stewart’s Answer

    Write a letter to your mother demanding a copy of the trust in accordance with California Probate Code section 16061.7. That code section says that the trust must be shared with all heirs and named beneficiaries within 60 days of your Grandmother's death. Tell your mom you are giving her 2 weeks to provide a true and correct copy of the trust (and your grandmother's will) or you will file a petition with the probate court asking it to order her to turn over the trust documents and award you the attorney's fees required to get a copy of the trust. Keep in mind, most judges don't award attorney's fees in this case, but still put it in your letter.

    If you are forced to file the petition with the probate court, you will very likely need an attorney to help you. Good luck.

    See question 
  • Was hit by a vehicle as a pedestrian. How much should i be compensated?

    Stewart’s Answer

    Generally you have 2 years to file a lawsuit against the person who hit you. You should make sure you are treating with your doctors. Make sure you feel just as good as you did before the accident BEFORE you settle. That's why California law gives you two years before you absolutely have to file a lawsuit. If you don't get better, keep treating with your doctors and follow their advice. Do rehab, etc. Don't miss appointments.

    The insurance company will NEVER treat you fairly. Don't trust them for any reason. You should sign a medical release if they ask so they can review your prior medical records, but they will find anything they can in your medical records and tell you that you already had a preexisting injury. Don't believe them. You know how you felt BEFORE and AFTER you were hit.

    While you're treating with your doctors be sure to let your friends and family know of your aches and pains, etc. They will make great witnesses at trial. I think these "lay" witnesses are better than any defense expert who says you're not hurt, or if you are it's a preexisting injury.

    As or damages, it depends on your injuries. It's no longer 3 times your medical bills like in the old days. The insurance company will not offer you fair value ever. You will have to file a lawsuit and go through the litigation process to get a decent offer. To get the full value of your harms and losses you will have to take the driver in front of a jury.

    You will likely need a lawyer to help you with this. Good luck.

    See question 
  • Besides a Trust, what other documents, certifications, etc., can/should a Trustor get in order to assure no or limited disputes?

    Stewart’s Answer

    The no-contest clause will not keep your two step children from attacking the validity of the trust since you are leaving them zero to begin with. In other words, there is no incentive for them not to attack the validity of the trust, because even if they trigger the no-contest clause they end up with what they had to begin with--zero. So be aware that your two step-children may attack the validity to the trust even if you have the best drafted no-contest clause.

    A well-drafted no-contest clause can help for your four children. You need to make sure the no-contest clause is drafted in accordance with the new laws pertaining to no-contest clauses in California. You will likely need a lawyer who knows what they're doing in this area for a well-drafted no-contest clause.

    As far as indemnifying your Trustee son... the short answer is "yes" you can. The real question you need to ask is whether that is a good idea. I don't think one should limit the duties a trustee has to trust beneficiaries. But if you want to, you can include a "exculpatory clause" which states that any good faith mistakes by your Trustee son should not be held against him. Most exculpatory clauses have terms that state your Trustee son would still be liable for actions taken or made that are "grossly negligent" or "reckless".

    Good luck with your planning.

    See question 
  • 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?

    Stewart’s Answer

    Most courts will go along with the Heggstad Petition for the facts you've provided. You want to make sure you state in the petition that your mother "intended" the real property to be part of her trust, and the only reason she took it out was to refi and intended to put it back. Attached to the Heggstad Petition a true copy of the trust and the exhibit showing the real property was included in the trust (usually Exhibit A to the trust).

    If you would like a copy of my Heggstad Petition that I use let me know and I'll email it to you. Just keep in mind that I'm not agreeing to represent you and am not providing you with legal advice. Good luck.

    See question