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Stewart R. Albertson

Stewart Albertson’s Answers

44 total


  • Discovery

    Stewart’s Answer

    • Selected as best answer

    No you do not have to share anything with them informally. The only time you must provide documents to them is when they send you a formal document demand under the California Code of Civil Procedure. You an also send them a formal document demand for the manual of the item that injured you. They will likely object and claim "trade secret" but that is not a proper objection. This is, unfortunately, where you need a qualified attorney to help. You can agree to a stipulated protective order to get the manual. But if you don't know what you're doing, the defense will load the stipulated protective order with terms that they can use against you later in the litigation. I wish I could be more helpful to you on what should be included in a stipulated protective order, but that changes from case to case. Generally, you want them to agree to provide the manual, and you agree that you will not disclose the manual to anyone other than your experts. Good luck.

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  • What happens if a power of attorney is granted over a Trustee in California?

    Stewart’s Answer

    The problem you’re going to continue to run into is that banks and title companies all have different rules for relying on powers of attorney—even though California law is clear that third parties are allowed (and even protected) to rely on a properly executed power of attorney.

    As a general rule, there are NO requirement that the Trust instrument itself contains terms stating that an agent under a limited, general or durable power of attorney has the right to act in place of the Trustee/Settlor. The only requirement from a Trust standpoint is to make certain there are terms in the Trust allowing the Trustee/Settlor to amend, modify, manage, administrate, or revoke the Trust instrument. If the Trustee/Settlor has that power, then an agent under a valid power of attorney has the same authority as the Trustee/Settlor. Of course the power of attorney needs to state the powers of the agent, including the power to make decisions for the Trustee’s/Settlor’s Trust.

    The previous answer makes sense. It may be feasible to contact each title company and figure out the requirements they need to honor the power of attorney. If there are only a few title companies, this is a workable situation. Good luck.

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  • What burdens do trustees face in CA when a trust is challenged?

    Stewart’s Answer

    This is a complex question because it depends on what the trust terms state, what the will states (likely a pour-over will), how many beneficiaries there are, and which beneficiaries are challenging. Also, is there a no-contest clause? And if so, does the challenging beneficiary stand to lose whatever inheritance s/he is getting under the trust as it stands now?

    Can I sell property: With those comments in mind, if the trust terms allow it (which they usually do under “Powers of Trustee”) you should be able to sell trust property. Be sure to set up a trust bank account and put all proceeds related to the trust in that bank account. You need to obtain an EIN number from the IRS to set up the bank account. The bank will require an EIN number, a death certificate, and a copy of the trust. Keep good financial records as they will likely be subpoenaed in the trust contest. It goes without saying, you should never use trust funds for your own expenditures.

    Do I have to lodge the pour-over will: Yes; all wills must be lodged in the county where the decedent died, within 30 days of the decedent’s death. Make sure to take the original will and a copy. The court will lodge the original will and file stamp your copy so you can prove you lodged the will.

    If the Trust is invalidated does the estate then have to go through probate: Likely, yes. Unless there’s a settlement at the trust level, which usually occurs. But if the trust is invalidated, then the decedent’s assets would need to go through the probate process if they are valued at any amount over $100,000.

    Attorney’s fees: It is unlikely that the challenger’s attorney’s fees would be paid from the estate. The court has discretion here, but usually does not award attorney’s fees unless the trust terms or a Probate Code Section (or any other California Code Section) allows.

    Hope this helps. In my opinion, you need to speak with a qualified attorney regarding this matter.

    Disclaimer: Any communication through this site is not intended as legal advice, but merely general information. You should consult with an attorney of your choosing to get specific advice about your situation.

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  • How do I change vesting title to 50 % of trust name (John Doe family trust) and 50 % to my daughter's name ?

    Stewart’s Answer

    I don't know if I fully understand your question, but it appears you are wanting to transfer title out of one name into two names. While your plan may not be a good choice for many reasons, the answer to your question is to record a "quitclaim deed" with the county recorder's office transsfering the property out of the current title to "John Doe, as trustee of the John Doe Family Trust with an undivided 50 percent interest, and NAME with an undivided 50 percent interest, all as Tenants in common to the real property commonly known as ADDRESS.

    Make sure the Quitclaim deed has a legal description along with the county's parcel number.

    The Quitclaim deed needs to be notarized, and you need to record a "Preliminary Change of Ownership Report (PCOR)" with the county where the real property is located.

    This may sound like a simple process, but it is not. You shoud consult with an attorney to make certain the transaction makes sense and it is properly transferred. I've seen many mistakes made by people doing their own deeds that end up costing thousands later in litigation.

    I hope this helps.

    Disclaimer: Any communication through this site is not intended as legal advice, but merely general information. You should consult with an attorney of your choosing to get specific advice about your situation.

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  • Can a parent of a deceased adult daughter claim her 401k ? There is no beneficiary listed on the 401k. she had no children.

    Stewart’s Answer

    • Selected as best answer

    I agree with Mr. Lively's comments. If the amount is under $100,000 you can claim the amount by using a Probate Code 13100 affidavit. Generally, you need an attorney to help you draft the 13100 affidavit. If more than $100,000 in value then you do need to file a petition for probate. Once again, generally speaking, you will need an attorney to help you with this.

    Good luck.

    Disclaimer: Any communication through this site is not intended as legal advice, but merely general information. You should consult with an attorney of your choosing to get specific advice about your situation.

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  • Does any one can sign my name as Grantor if he has a general power of attorney & I authorized him to do so ?

    Stewart’s Answer

    If I understand your question, you are asking if a person has a general power of attorney can that person sign my name as a grantor (presumably on a deed). The answer is yes. As long as you give a person a general power of attorney to act as your agent pertaining to real property transfers (i.e. signing grant deeds, quitclaim deeds, etc.) then that person has the power to sign on your behalf.

    California Probate Code section 4401 has a form for a California power of attorney. You can type that up word for work and select the powers you want your agent to have. Then execute it and your agent should be able to use it.

    Good luck.

    Disclaimer: Any communication through this site is not intended as legal advice, but merely general information. You should consult with an attorney of your choosing to get specific advice about your situation.

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  • How do I obtain an Power of Attorney for my daughter?

    Stewart’s Answer

    I agree with the previous answer. This sounds like a "conservatorship" matter. You need to seek the advice of an experienced attorney who understands conservatorships in California. More than likely the attorney can file a petition for conservatorship and have you appointed as conservator of your daughter. You will then have a court order to provide to the hosptial at which time they are required by law to follow your instructions. As an aside, if timing is of the essence, you should ask the attorney about an emergency filing that allows you to be named as a temporary conservator so you can act quickly on behalf of your daughter.

    Sorry to hear about the frustrations you are having. Hope this helps. Good luck.

    Disclaimer: The above answer does not create an attorney/client relationship. My responses are intended to provide general information about the question posted. I am licensed to practice in the state of California.

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  • Follow up to "I have been denied a full copy of my father's trust.."

    Stewart’s Answer

    I agree with the answer above. It appears there may already be a "conservatorship" in place as you alude to previous court hearings. If so, make sure there is an adequate bond to cover any losses to your father's money if someone steals anything before he dies. If no conservatorship is in place, you should do as the previous answer suggests: go see an attorney immediately and file for a conservatorship.

    Disclaimer: The above answer does not create an attorney/client relationship. My responses are intended to provide general information about the question posted. I am licensed to practice in the state of California.

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  • Can an executor of an estate kick us out of the home of the deceased??

    Stewart’s Answer

    I agree with the previous answer. In California you do have rights based on the facts you provided. You need an attorney to help you throught this one. Best of luck.

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  • My father passed away2001 and mother passed 9-2005, they had done a will in 1985 . I went with them when they did the will.

    Stewart’s Answer

    In general, if the original will cannot be found after a decedent dies, and there are facts indicating the decedent was the last person in possession of the will, it is presumed the will was revoked prior to the decedent's death. You then have to overcome that presumption with facts showing the will was not revoked or destroyed by the decedent, or that the decedent was not the last person in possession of the will, or perhaps someone other than the decedent destroyed the will

    Your question appears to point out that perhaps your brother made sure the will could not be found after your parents' deaths. If that is the case you should seek the advice of an attorney to review these facts and provide you an opinion on your options.

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