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Scott Peter Schomer

Scott Schomer’s Answers

134 total


  • Who is the legal title holder

    our home was in a living trust. my husband quick claimed the title to me. he is a trustee of the trust. but he just put his name. Who is it really on title. since 2006 everything comes in my name, taxes and stuff. But, then I was told that there i...

    Scott’s Answer

    A trust asset should be funded in the name of the trust. Trust assets are held in the name of the trustee, for the benefit of the trust.

    An unfunded trust is the leading cause of trust failure. If you don't understand this area, you should review it with an expert as soon as possible. Otherwise your trust might be useless.

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  • Which comes first, filing the lawsuit or going to mediation?

    My brother and I want to sue the trustee of our late sister's estate for fraud, misappropriation of funds etc. Are we supposed to schedule mediation first and then file the lawsuit or is it the other way around? Does it matter?

    Scott’s Answer

    Mr. Daymude is correct. You have to follow the directions of the Trust, being sensitive to the various statutes of limitations. On occasion, you can proceed directly to mediation without filing an action but the typical process is (i) demand letter, (ii) petition to compel, and (iii) mediation.

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  • Can remainder beneficiaries get access to accounting of an LLC owned by Trust after death of beneficiary?

    My grandfather's got a living trust with about a $10M estate. He is medically incapacitated and my crooked uncles are now trustees. They are colluding with my grandfather's lawyer who refuses to get a conservatorship. The estate assets are all ...

    Scott’s Answer

    I disagree with your uncles' attorneys. If you allege your grandfather's incapacity and the trustee's self-dealing, a court will allow you to look back prior to death. In fact, the typical starting date is when they assume control, not date of death. It sounds like they have already assumed control.

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  • Should Trust's fund being invested through an LLC or is the Trust's name? Is there a way to 1031 funds out at the end of deal?

    I will be investing Trust funds with a company (LLC) that owns and operates apartment projects. I will be investing is one particular apartment property with many other investors. Ideally, I'd like to have the option of 1031ing out at the end of...

    Scott’s Answer

    The trust can invest in the LP either with or without the use of an LLC structure. You can also take advantage of the 1031 rules. See counsel for more specific guidance.

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  • Discretionary trust distribution

    I am one of 4 trustees for discretionary trust for my deceased uncle. There are 9 beneficiaries. The trust states trustees have absolute discretion how to distribute and how much. All the trustees agreed to pay one trustee/beneficiary a larger...

    Scott’s Answer

    Your instructions on how to distribute should be described in the trust. You must follow the instructions or risk being sued for breach of fiduciary duty or worse.

    If the trust instructs you to split the corpus (or trust assets) equally nine ways, then you must follow that instruction. The discretionary part usually refers to how you distribute a share and gives you authority to withhold a portion of the particular beneficiary is under age or having problems.

    If the language of the trust is not clear, then seek legal counsel and consider filing a petition asking the court to give you clear instructions.

    Remember, this is not your money. If you act improperly, even if your intentions are good, you can have problems.

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  • My question is, is the new Living Trust legal?

    I am the successor trustee of an original Living Trust that my my parents drafted in 1998 when they were both of sound mind. My mother now at 90 yrs old has been incapacitated for the last 10 yrs and my father at 92 yrs is not of sound mind. I hav...

    Scott’s Answer

    In most instances, the original trust would have become irrevocable (not subject to change) at the time of your parents' incapacity. That being said, the issue of your parents' incapacity is a factual determination and reasonable minds (and experts) can disagree. It appears that at least one attorney probably believed that your parents were capable of amending it.

    On a more practical level, the general rule is that the latest version of the controls unless proven otherwise. It is unlikely that banks or title companies are going to raise the issue of whether or not your parents were competent to to sign it when they did. So most likely the trust gives them awesome power to control the assets and without some action to stop it (like a court order) they will remain in control.

    While many trusts contain a no contest clause, the law provides an exception to challenging a trust if you have probable cause to challenge it. Most likely a doctor's determination of incapacity would be sufficient cause for you to file a challenge with little risk of being dis-inherited, but this depends on the facts.

    You've described a challenging scenario. You should seek effective counsel as soon as possible to discuss remedies including but not limited to a petition for instructions, a trust contest or a conservatorship.

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  • In California, can an attorney who has an interest in a family trust represent a family member who is being sued?

    If the property which is the subject of the civil action is held in a family trust and the lawyer/family member has ANY interest in the trust in ANY capacity is it a conflict of interest for him to represent the family member/defendant?

    Scott’s Answer

    The nature of the interest in the trust is key. An attorney who is a trustee or represents one could not represent a defendant who is being sued by the trust. But when an attorney who has a personal beneficial interest in a trust represents a defendant, that fact alone probably does not create a conflict, even though it is probably a display of poor personal judgment.

    See an attorney to help you sort through the specifics and possibly file a motion to disqualify.

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  • What is better "Will" or "Living Trust" ? I want my assets, properties, savings, 401k ,pension,etc. to my children.

    I want to know what is better "Will" or "Living Trust". I'm going to legal separation/ divorce and I need to create either Will or Living Trust for chilndren in case something happen to me.

    Scott’s Answer

    I'm teaching a free seminar on wills and trusts starting June 7, 2016. I cover the estate planning topics most important to families. You can see the dates and locations here:

    http://www.schomerlawgroup.com/seminars/

    Come on by and I will explain it all to you.

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  • Is it valid for mom to ask dad to sign a notarized letter with the 2 things she wants & if so what type of letter will she need?

    my brother past away, he was not married or has any children. he left a house in texas and mom and dad are still alive but no longer with each other. dad wants mom to sign a document so that she gives up any rights to the property in TX my moth...

    Scott’s Answer

    One or both of your parents are trying to protect their interest in a house which could be worth tens of thousands, if not hundreds of thousands of dollars. Now is not the time to be cheap. Find an attorney in Texas where your brother died. Get it done once, get it done right.

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  • Do I need to file to become executor of the estate even though I'm already listed on the trust? If so, what forms if any do need

    Hello, I in am in the state of California and my father passed away 6 years ago. He had a living trust and will which I am named the executor of the estate on. As a result, I have closed bank accounts, filed taxes, sold property and never had any...

    Scott’s Answer

    If properly created and funded, the trust works after your father's death. The lender probably didn't lend to the trust but rather to your father and thus they will not deal with the trustee. The fact that you are named in the Will as executor does not mean you are executor. In order to be executor, you have to be appointed by the court, which means opening a probate proceeding. You may be able to handle this by various expedited probate proceedings (rather than a full-blown probate); see an attorney for more details.

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