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Stewart R. Albertson

Stewart Albertson’s Answers

44 total


  • Have a meager to moderate amount of assets. Have read that a Living Trust is better than a will for estate planning. true? when?

    Stewart’s Answer

    You have two primary options: (1) a living trust (with a pour-over will), or (2) a stand-alone will. The cost for a basic living trust runs anywhere from $1,200 to $2,500, depending on the circumstances. The cost for a stand-alone will runs anywhere from $400 to $1,000, depending on the circumstances.

    What about the costs after you pass away? The Living Trust is not required to go through the probate court process, a time consuming and expensive process. The stand-alone will must go through the probate court process.

    Thus it is generally less expensive to set up a stand-alone will than a living trust. But it is likely to be more expensive to administrate a stand-alone will after your death, than it would be for a living trust.

    I recently wrote a blog article on the costs of transferring assets by a stand-alone will in the probate court. You can see that article linked below.

    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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  • If a will is in a trust, do I have file it in court?

    Stewart’s Answer

    Yes, the original Pour-over Will needs to be lodged (filed) in the county probate court where your mother died. Don't mistake this for filing a "Petition for Probate". You are simply "lodging" the Will with the court in accordance with California Law. Be sure to get a copy of the Will before you lodge it with the court.

    Hope this helps.

    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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  • Are heirs at law entitled to see turst and will if they are not named as beneficaries?

    Stewart’s Answer

    The answer to your question is likely "yes" you have a right to receive the Trust document.

    California Probate Code section 16061.7 requires a trustee to serve notice when any portion of a revocable trust (i.e., living trust) becomes irrevocable (it usually becomes irrevocable on the death of the person who created the trust). See the link below to Probate Code section 16061.7. This 16061.7 notification must be served on each beneficiary and each heir of the decedent within 60 days of the trust becoming irrevocable.

    Also, a decedent's Will, if any, is required to be lodged, within 30 days of the decedent dying, with the county probate court where the decedent died. Thus, you can obtain a copy of the Will if it has been lodged.

    But the living trust is usually the most important document to obtain and review as most Wills drafted in conjunction with a Living Trust are Pour-over Wills that name the Living Trust as the only beneficiary of the Will.

    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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  • When considering living trusts is there is a tax advantage when placing financial assets like bank accounts in a trust?

    Stewart’s Answer

    There is no tax advantage for placing financial assets, like bank accounts, in a living trust. You treat these bank accounts the same way you did before placing them into your living trust.

    Many times my clients do not want to re-title all of their financial accounts in the name of a living trust. In that case, I usually recommend that they simply make sure that the "beneficiary designations" of their bank accounts list (designate) their living trust as the beneficiary.

    A word of caution on designating other types of financial accounts, other than bank accounts: Keep in mind that there could be a tax savings regarding most retirement accounts that are taxable at distribution. In this case, one may not want to designate the trust as a beneficiary, but rather designate all the beneficiaries direclty as a class, resulting in deferral of income tax on the retirement account. You should consult with an attorney if you are designating anything other than bank accounts to your living trust.

    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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  • Does the petitioner need to appear at the initial probate hearing?

    Stewart’s Answer

    The short answer is "yes", the petitioner should appear at the initial probate hearing (I can't think of a good reason for a petitioner not to show up at the initial hearing date). If the petitioner does not show up at the first hearing, the court is likely to set a new date in the future for the initial hearing date. If the petitioner fails to show up again, the court may dismiss the matter, depending on the facts.

    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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  • Should I record my living trust with the county recorder? What are the pros and cons to this?

    Stewart’s Answer

    No you should NOT record your living trust with the county recorder. If you want to make sure all of your real property is funded into the trust, you simply need to record "Trust Transfer Deeds" (just like a Grant Deed or Quitclaim Deed) for each real property in the county recorder's office where the real properties are located.

    I hope this helps. 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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  • Is an estate planning attorney required to keep an original copy / photo copy of the trust he/she created?

    Stewart’s Answer

    In short, no, an attorney is not "required" to keep the original or a copy. In my experience most attorneys do keep either the original documents or copies.

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  • My grandmother left her dauther which is my mother a trust account grandma passed in 1994 my mom passed in 2010.

    Stewart’s Answer

    If I understand your question, your grandmother had a bank account that names your mother as beneficiary of the bank account on your grandmother's death. Your mom never claimed the money, and now you are attempting to get the money from the bank after your mother has passed away.

    If your mother's total estate is worth less than $100,000 you can collect the $8,000 by a California Probate Code section 13100 affidavit (see link below for the Probate Code section). The bank is required by California law to accept the 13100 affidavit. Many times banks will have its own forms for a 13100 affidavit. If so, ask the bank for its 13100 affidavit form and fill it out. It will need to be notarized whether you draft it yourself or get it from the bank.

    Hope this helps. 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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  • Can I respond to the answer to a complaint(Civil Limited) In Ventura Superior Court. I want to respond to there general denial

    Stewart’s Answer

    • Selected as best answer

    California has a procedural two by four by the name of Form Interrogatory 15.1 to deal with bad faith general denials and affirmative defenses. It is in my opinion the single most important interrogatory to send to the opposing party. You can eliminate 90 percent or more of affirmative defenses by sending Form Interrogatory 15.1 to the opposing party (see attachment below).

    In addition, 15.1 requires two agonizing questions to be answered by your adversary. First, 15.1 requires your adversary to provide you with all the facts, persons, and documents that support his or her general denial of your complaint. This means your adversary must identify each element of each material fact in your complaint that he or she denies. Then your adversary must answer subparts (a) through (c) of 15.1 by identifying each fact, witness (including their names, addresses, and phone numbers), document and thing supporting each and every denial of a material fact. Ouch. That one hurts. If they can’t articulate any facts, witness, or documents, then his or her denial lacks any merit and you can point this out at trial.

    Then, on top of all of this, 15.1 requires that your adversary provide you with all facts, witnesses, and documents that support any of his or her affirmative defenses. This is where it gets fun. Example: a typical affirmative defense alleges that you have “failed to state a cause of action.” 15.1 requires any person alleging this affirmative defense to provide all facts that support the affirmative defense, all witnesses that can testify to the affirmative defense, and all documents that support the affirmative defense. In all likelihood there are no facts, witness, or documents to support this affirmative defense, and as such the opponent must state so in the answer to 15.1. Don’t let them answer that “discovery is continuing.” Of course discovery is continuing, but they must provide you with the answer they know at this present time, and that is usually that they have no facts, witnesses, or documents to support the affirmative defense. 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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  • If i was told by conservtor that i was revoked as a sucessor truste but thier no documentation stating thes fact

    Stewart’s Answer

    Another option you can try is to send "Statutory Notice" in accordance with California Probate Code section 16061.7. to each of the Trust's beneficiaries (Of course this assumes you have a copy of the trust document naming you the successor trustee.) If there is a court order removing your name as a successor trustee, or perhaps a trust amendment naming someone other than you as successor trustee, it will likely be sent to you in short order.

    Of course, the previous answers provided give you a good place to start your investigation. Find out what the minute orders state on the county court's website (usually filings are made in the county where the decedent died or where the conservatorship proceeding was filed). Most counties in California provide some type of limited information in the "minute orders" and perhaps you can find out who the new successor trustee is, if anyone replaced you by court order, or perhaps by a trust amendment.

    Finally, if you are a Trust beneficiary or an heir of the decedent you have an absolute right to the trust documents under California Probate Code section 16061.7. The successor trustee has 60 days from the decedent's date of death to provide the Trust documents to you if you are a Trust beneficiary or an heir of the decedent. Be careful, once you receive notice under 16061.7 you usually have 120 days to contest the terms of a trust or a trust amendment. So if it's important that you want to be the successor trustee (for whatever reason), and someone other than you is named as a successor trustee in a later signed document (not a court order) you have to file a petition under California Probate Code section 17200 to determine who is the rightful successor trustee. Of course you need an attorney to review any filing you intend to make to be certain the filing does not trigger the Trust's no contest clause, if any. 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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