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Stewart R. Albertson

Stewart Albertson’s Answers

44 total


  • When did an irrevocable Trust EIN requirement become effective?

    Stewart’s Answer

    I believe EINs were authorized all the way back in 1954 under the Tax Code in place at that time.

    The purpose of the EIN is to identify the taxpayer (in your case the irrevocable trust) and to provide a unique number for filing required tax returns (a 1041 tax return would likely be required for the irrevocable trust).

    When a trust becomes irrevocable, it stands alone as its own entity, which requires a unique number (an EIN) to be assigned for tax identification and reporting requirements. That's the primary purpose. I'm curious why one was not required for your parents' trust after they passed (assuming they had a trust).

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  • In L.A. County, on the Probate Case Coversheet (POS-010) filed with a Heggstad Petition, what do I check for "TYPE OF ACTION"?

    Stewart’s Answer

    My suggestion would be to check next to the box "Other petition" under Miscellaneous Civil Petition. Best of luck to you.

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  • Please explain why being grantor and trustee of a trust loses protections?

    Stewart’s Answer

    As I understand your question, you are wanting to know whey a Settlor (trust creator) who contributes his/her own property to a trust loses protection from lawsuits or judgment against the trust assets.

    The law does not allow a person to create a trust, put their own assets in that trust, and then tell the world "you can't collect in a lawsuit against me because I have no assets--my trust owns all the assets." A trust by its nature is revocable by the trust creator. And even if the trust creator creates a self-created irrevocable trust, the court's will easily unwind the trust to pay creditors or judgment creditors.

    Now, it's a different story if a trust creator creates a trust, that has a valid spendthrift clause, which also names Irresponsible Son a beneficiary. In that case Irresponsible Son's creditors and judgment creditors are generally unable to get access to Irresponsible Son's beneficial interest in the trust. Most of these types of trusts permit the trustee to suspend any and all distributions to Irresponsible Son if creditors come looking for money owed to them.

    So, you can see that a person cannot create a Trust for themselves, put their own property in that Trust, and be protected from creditors. Whereas, on the other hand, a beneficiary of a Trust (who did not create the Trust) that has valid provisions protecting the beneficial interest from creditor's claims is generally permitted.

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  • Does an amendment to an irrevocable family trust negate stipulations in the original if not specifically stated again?

    Stewart’s Answer

    This is a complicated issue of trust interpretation based on the California Probate Code. Generally, if the amendment does not revoke the prior provision in the original trust you may have an argument that the original trust language is still effective. If there was a restatement of the trust then you may not have a good claim as the restated trust generally replaces the entire original trust. Finally, if the separate property trust was a brand new trust, and all the properties were properly transferred to it, and the property trust does not permit you to live in the home rent free, you may be out of luck. It's hard to tell based on the facts you provided. You likely need to contact an attorney to help you understand the trust terms and your options. Best of luck to you.

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  • In California, is it legal for the beneficiary to also be the POA on a trust?

    Stewart’s Answer

    I'm not clear on your question, but as I understand it an agent under a power of attorney created a trust for the trustor, who I presume is incapacitated. Generally, this should raise red flags as the primary beneficiary of the trust is also the agent under the power of attorney who is deciding to create a trust for a settlor, who is presumably incapacitated. I believe you will need an attorney to help you with this one. Best of luck to you.

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  • How long does it typically take for a probate court to approve a trustees final accounting?

    Stewart’s Answer

    Tough to answer your question without more facts. Generally, a final accounting, once filed, can be approved at the first hearing. But this may not happen for several reasons. Perhaps the court, in reviewing the accounting, has questions about some parts of the accounting. If that's the case the court will generally request further information be filed to support the accounting and give a future hearing date (usually out at least eight weeks fro the initial hearing). Then, if the Trustee does not adequately answer the court's questions, that second hearing can be set out further again because the court is not satisfied with the accounting. This can go on for some time where a Trustee is not providing the court with the information it needs to approve or disapprove the accounting. It can be a frustrating process. Hopefully your Trustee will provide all information that is required in the first or second hearing on the final account. In that case you would be looking at several months to half a year for approval of the accounting. Best of luck to you.

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  • Need for getting new Administrator in Probate case?

    Stewart’s Answer

    • Selected as best answer

    First, getting the personal representative removed is NOT an easy task. It's not as simple as pay a lawyer a fixed cost to get the representative removed. But, you indicate that the judge is already unhappy with the representative's attorney. That may be a good sign.

    There are several really good attorneys in the San Bernardino area that handle requesting a court to remove a personal representative. If you would like me to provide their names to you, shoot me a message.

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  • The signature sheet to my husbands living trust disappeared, and he has passed away, is the trust and amendments still valid?

    Stewart’s Answer

    Based on the facts, as you present them, this likely will be a problem for you. The signature page is required to properly form a Trust. In this case, it is missing. I would suggest several options.

    First, keep looking through his personal papers to see if you can find the missing signature page.

    Second, who drafted the Trust? Hopefully a law firm or lawyer. If that's the case, find them and there's a good chance they will have a copy of the signature page.

    Third, did he save important papers on his personal computer? Perhaps he scanned and saved a copy of the Trust on his computer. Get someone who knows what they're doing with computers to search for it.

    Fourth, did anyone have access to his papers after shortly before or after his death who would have had a motive to destroy the signature page. While this may be difficult to track down and prove, it's another avenue to look down.

    You will very likely need an attorney, especially if the Trust estate is sizable (above $250,000 in value). Best of luck to you. Hope this helps point you in the right direction.

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  • What can one "co-trustee" do when the only other "co-trustee" refuses to disclose their parents' financials?

    Stewart’s Answer

    Assuming the Trust creators (I'm assuming your mother and father) have passed away, an you and your sister are name co-successor trustees, then she is wrong. You have several options here: Demand in a writing that your sister provide you with the information you are asking for. If she won't provide it, you'll likely need to hire an attorney to file a petition with the probate court and ask the court to order her to provide the information to you. Or, as a co-trustee, you have the right to go the bank (or other financial institution) with a copy of the Trust, your deceased parent's death certificate, your identification, and obtain access to the financial accounts. Some banks will freeze the accounts if they sense a fight brewing between two co-trustees, and if that's the case, you will likely need to hire a lawyer to file a petition with the probate court to have your sister suspended or removed as trustee.

    This can be a long and frustrating process. Best of luck to you.

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  • Trustee vs beneficiary?

    Stewart’s Answer

    Yes, it is likely that your sibling, who is the Trustee, is in breach of the Trust terms. It sounds like you have a copy of the Trust and know what it requires for the distribution of your mother's jewelry. You should ask the Trustee for an "accounting" of the jewelry on hand at your mother's date of death. And then ask where the jewelry is now. Keep in mind some Trustee's like your sibling will play games by saying that your mother "gifted" the jewelry to him/her before she died, or some of the jewelry was "lost" prior to your mother's death. In all events, you need them to confirm for you the jewelry your mother owned during her lifetime (presumably you know some of the pieces) and ask where those pieces are today. If the Trust says you get them, and your sibling won't give them to you, it's likely time to consult with an attorney.

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