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Thomas Stindt’s Answers

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  • I was named both the trustee and the beneficary in an irrevocable trust, I lost the last page which had both signatures

    I have a two part question Although I lost the signature page of the irrevocable trust ( I down loaded the forms from the internet, so there is no other copy) ..I did have it notarized and I have do have a certificate of ackwowledgement receipt ...

    Thomas’s Answer

    • Selected as best answer

    You have some work to do, and this is not something you are going to be able to resolve without help.

    First, you should file a petition in the Superior Court in Los Angeles County, probate department, to confirm the existence of the irrevocable trust, your status as trustee, and confirm the trust estate includible in trust administration. Your verified (under oath) summary of facts will be in that petition, along with the notary's receipt, probably a sworn declaration from that notary, and a copy of whatever you have of the trust. If the proper showing is made, you should be able to have the existence of the trust confirmed. That will give you standing as a trustee to exert all of the trustee's powers under California law.

    Secondly, you should probate the original Will, in the jurisdiction of decedent's last residence, and the fact of it being notarized doesn't help. We don't notarize Wills in California, they are witnessed by two parties. If the Will is properly signed and attested by subscribing witnesses, you should be able to get it admitted. Then Letters Testamentary will be issued to you, empowering you as Executor with all powers under California law.

    Next, exert such remedies as available to marshal the assets into both the trust and the probate estate.

    To do the above, try contacting a probate lawyer in Los Angeles County who would be willing to accept modest means matters, and there are such persons. You personally don't pay that attorney for the estate work, the estate as an entity will pay him, from probate property, and after court approval. That may require liquidation of assets, but if so, then so be it. As to the trust work, such attorney may work on a deferred fee basis and once you are confirmed as trustee, then you could liquidate assets to pay the attorney, on an hourly basis.

    If you have trouble finding someone, try the referral panel of the Los Angeles County Bar Association. They have a list of probate lawyers who will accept small estates and modest means matters. Ask the referral person at the Bar Association for a small estate, modest means matter attorney.

    Good luck.

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  • As executor if my parents are gone, am I liable for any debts or bills they still have outstanding. Is that part of the estate.

    I am executor of my parents wills. What liability is involved if 1 parent is living and if both are deceased.

    Thomas’s Answer

    I would answer that the second response above is essentially correct, because as Executor you don't take on the debts of your decedent, you just administer his probate estate. However, your hypothetical question seems to assume first, a case in which one parent is deceased and one is living. If you qualify to serve and letters are issued for the pre-deceased spouse (your parent), you need to complete the estate administration correctly. You wouldn't "inherit" the debt of that parent, but if you make a serious mis-step in the probate administration process, you may find that the known creditors will be in pursuit of you for mismanaging the estate, such as not giving them notice of the administration, thus depriving them of the right to file creditors' claims, following which you distributed property to the surviving spouse (your living parent). The distributed property could remain liable for the claims of such creditors, subject to applicable limitations periods, and more related to your own interest, you could create a new personal liability, not based upon inheritance but based upon your failure to properly administer the estate in this scenario. The point is that once you accept the duties as court-appointed personal representative of the estate, there are certain steps required to be completed properly, and you owe a duty to all interested in the estate, beneficiaries and creditors, to see to it that those things are done properly. Failure to do so would be the only way as Executor you might acquire such a liability. Personally, you might only acquire liability as a transferee through a Small Estate Affidavit, or by succeeding to certain non-probate property, as to which debts can follow the property in certain cases. But that liability would not be as an "executor" but rather as a gratuitous transferee who received property in derrogation of the rights of the donor's creditors.

    It would take a legal action to fasten such liability upon you, either as a transferee without consideration who succeeded to the debtor's property, or as an Executor who mis-administered an estate. There are procedural and time limitations applicable to such actions, also.

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  • My elderly parents are deceased. They left no estate. They have outstanding credit card bills. Who is responsible for paying

    How should ths be handled

    Thomas’s Answer

    The general rule is that you or your siblings would not "inherit" debt from your parents on their credit card accounts; that debt would be part of their estates, to be paid from probate estate assets. If none exists, then trust estate assets of grantor, revocable trusts they might have created would be responsible, and the successor trustee(s) would need to address such creditors' claims as part of trust administration. Next, if there were no trust estates, consider whether there were abbreviated probate procedures employed, such as a Small Estate Affidavit to collect assets by a successor-in-interest, such as yourself. For example, you could not collect assets outside of probate through a Small Estate Affidavit, in jurisdictions having such a procedure, and at the same time, "stiff" the creditors--you would collect such assets subject to those claims. Were there assets transferred outside of probate?
    But if there is none of the above, and there were no lifetime assignments to you or others made without consideration and which might still be voidable by your parents' creditors as alleged fraudulent transfers, then the credit card companies are not going to be able to collect. You probably won't be probating a no-asset estate, so possibly a letter to the collection officer in response to their stream of letters your deceased parents will be receiving will be sufficient. Just tell them, if true -- both deceased, no assets, no probate estate, no non-probate assets, no guarantors, no property of any type, kindly stop writing, no further response will be provided. That should do it.

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  • What is proper way to sign a small estate affidavit?

    My mother died in Danville Virginia without a will and all of her assets were under $15,000. A relative left her a small inheritance of $5,000 and her living relatives are four grown chiidren and we were told t...

    Thomas’s Answer

    There are some things for you to check on before you start to prepare and sign a Small Estate Affidavit.
    First, you don't mention the order of deaths. Did your mother predecease the relative who left her the pecuniary bequest? If so, the gift to her may have failed, unless the applicable state anti-lapse statute saves otherwise failed gifts for issue of the named beneficiary.
    Second, was there a condition of survivorship attached to this pecuniary gift to your mother? If so, she would need to survive the donor, in order to receive the gift.

    Once you know that the gift is enforceable and descends to you and your three relatives, apparently through your mother's line, then you could prepare a Small Estate Affidavit. Each state has a little bit different rules, but the general tenor is the same: It is a notarized, sworn statement, with certified death certificate(s) attached, showing that the estate qualifies for abbreviated treatment, and that the persons signing are the ones entitled to the funds. That is it in a nutshell, but there are various items to be included, which will vary depending upon the state involved. Try going to the the bank where the funds are held and ask them what form they prefer and they may possibly give you a form. Or just recognize that a local probate lawyer is going to be needed, and have one do this for you, shouldn't be a big deal, maybe it takes an hour plus an hour meeting with you to get the facts.

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  • Who can place property into probate and make claims on it

    My grandfather passed away and my mother has delayed putting the house into probate. At the time of his death I was living in the home caring for him. I have continue to live in the home all while maintaining the upkeep and property taxes. I am...

    Thomas’s Answer

    Whether or not the house you refer to must be inventoried in the probate estate, will depend upon the title to the house. If it was in Granfather's name alone, and not abbreviated probate exceptional procedures are available for modest estates, it should become probate property. You need to know who was designated Executor in Grandfather's Will, and insist that such person proceed or decline to serve. If he had no Will, then there are statutory priorities in California stating who may seek letters to become the probate Adminstrator. Your mother and your uncle come before you, but if they decline or do not seek appointment, an adult granchild may do so. Or you could advise the county public administrator that there is an estate needing probate, and they may open an estate from their office.

    You should consider filing a Creditor's Claim for the reasonable value of your services assisting your Grandfather. Expect to receive an objection from the personal representative of the estate, unless you have an agreement providing for your compensation for those services, or unless the amount claimed is modest in relation to the size of the estate. Be prepared to prove out your time and services with detailed scheduling, with date of task, description of service, time spent, why it was necessary and how it benefitted your Grandfather, and that it was a need not being met in any other way. That will be attached to your Creditor's Claim. You should have a local probate attorney assist you with your Claim. There are strict time limits to filing such claims, so act promptly so that your time does not expire, if it has not already expired.

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    Thomas’s Answer

    Most states have abbreviated procedures for transfer of motor vehicles, and you should be able to find those maybe in the FAQ section of your State DMV's website. The power of attorney designation expired when your father died, even if it was durable. A Durable power extends beyond disability, but not beyond death.

    If his Will passes everything through a residuary pour-over clause into his inter vivos trust, and you are the successor trustee of that trust, you should be able to marshal the car into the trust, then sell it, and add the proceeds to the trust estate. However, some pour-over Wills gift autos to children and the residue to the trust, so check that out.

    You may need to do a Certification of Trust showing the gift from the Will to the trust, and that you are the trustee, in order for your State DMV to accept whatever transfer form they use to re-register the car.

    This should not be a major problem for you, from what you have said. It should not have to go to probate at least in most jurisidictions, but you will still have work to do to clear the title. Even with a trust, there is always work to do when someone dies.

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  • Can I collect money owed me from my brother's estate after he has died?

    My brother's wife gave me two documents that she found after he died that say he was to pay me an amount of money from my mother on her death. I never knew of these documents until my brother died and his wife was going through papers. I have ne...

    Thomas’s Answer

    The answer and the course of action to pursue your claim requires more information than you have provided. Is your brother's estate being probated? You would need to file a formal Creditor's Claim in his estate, based upon a breach of his duty as Administrator of your mother's estate (if he so served). There are issues you will face dealing with the nature of the promise or gift from your mother's estate, laches and time limitations which relate to the passage of time after her demise, and issue as to the duties owed by your brother when she died. If he was a fiduciary for her, as Executor or Administrator, the duty is higher than if he was just a successor-in-interest who received property from her with some kind of a subsequent gift expression or note along with it. Take the papers that you have to a probate attorney in your community and go through this with that person. Your claim may have some settlement value although be prepared that it will pit you adverse to your sister-in-law, if she is the person otherwise to receive your brother's estate.

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  • Probate Question regarding will and prenep. My grandfather was married to his second wife of 38 yrs. .

    Prior to the marriage they went to an attorney and signed a prenep. They both owned homes, She sold hers and moved into his home which was paid off a few years prior to the marriage. The will states that all joint property goes to her. Indivi...

    Thomas’s Answer

    This is an area of fervent cross-over litigation, at least in California. I say "cross-over" because it involves the both probate and family law issues.

    The answer to your question would largely be based upon the terms of the pre-nuptial agreement, and to be enforceable, whether they had separate counsel and the prospective wife had the statutory time (in some jurisdictions) to review it prior to its execution. Does the pre-nuptial agreement waive spousal property rights, family protection such as right to a probate homestead, rights to inherit from husband, etc? There should have been a new Will done after the marriage, reflecting the marriage, and giving the wife those amounts to which she was to be entitled under the pre-nuptial agreement, so that she cannot be considered an omitted spouse. If the documents were properly drawn, the specific gifts of personal property, if identified sufficiently, should go to the named beneficiary, the husband's grandson.

    When a pre-nuptial agreement has been followed by a thirty-eight year marriage, you need to look to be sure that no abandonment of that agreement has taken place. Has there been a commingling of assets intended to be kept separate when the agreement was executed? Were there informal amendments to the agreement, done in some way other than as the agreement specified? Those are all things to be considered in addressing this question. The husband's home (fully owned by him) became the residence of both parties in the facts of the question, but it is unknown if title was changed. If joint property was to go to the wife, then a question can be raised as to just what was meant by that term. For example, even property in husband's name alone, might be joint property for some purposes, such as the purpose of the estate planning intentions of the parties. Wife and husband may have used common funds or earnings of both to improve the property, wife may have acquired an interest over time, absent statutory presumptions.

    Wife may want to look for a No Contest clause also, before pushing too hard for more gifts. She may lose the "joint property" by seeking to latch onto the personal items destined for step-grandson.

    A probate litigator needs to review the documents and the family history facts with you. Then you should be able to reach some conclusions.

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  • In June of 1994 while living in Milford, Ct I executeda living will & last testament at a attorneys in Ffld Ct.

    I now live in Ma etc. My daughters are the beneficiaries and are now marriedd with children. I have been told to make sure there is a durable power of attorney and if necessary a trust in place. What does this mean and how do I find out

    Thomas’s Answer

    You need to do a bit more of checking on your existing instruments than what people have told you. Here are the things you should check on:

    1. Durable General Power of Attorney
    This is an instrument by which you designate an agent, your attorney-in-fact (does not have to be a licensed "attorney"), to transact business on your behalf. This can be beneficial if you are disabled, unable to sign yourself, or are out of the country. Your agent has all the power you have, unless you provide otherwise in this instrument. This is a broad grant of power, so do not execute this without advice. This instrument extends beyond your own disability or incapacity.

    2. Health Care Power of Attorney and Advance Health Directive
    This is an instrument by which you appoint an agent or agents to make health care decisions for you, should you be unable to give such instructions. Many hospitals will want this as part of the admissions procedure. You can also specify whether you want heroic life-sustaining measures utilized or withheld.

    3. Funding of new assets such as your new home in your new state of residence.
    Check the funded assets schedule of your trust. If you bought a home in your new state, you probably will want it in your trust.

    4. Conformity of Will and Trust with law of new domicile
    You should review your instruments with your new home state's laws in mind. There is nothing wrong with utilizing your old trust, it may "choose" your prior state's law to apply to construction or instructions issues. Review that point and also consider how marital property laws will characterize assets acquired and accumulated earnings in your new state.

    5. Changes of fiduciaries
    You may no longer want the same executor or successor trustee you had when you lived elsewhere. Also, you may not now need guardianship designations, although those would be harmless wordage if left alone and wouldn't justify a change just to delete guardianship language due to your kids now being adults.

    6. Designation of Conservators
    You should nominate a Conservator, in case you should ever choose one, rather than let someone else propose that appointment for you later when you may not be able to rebut it.

    I hope this helps.

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  • Quitclaim Deed correct way to change the name on a deed to a home?

    Recenlty we developed a Joint Living Trust and want to change the deed (to our home) to reflect the trust name. Is this done through a quitclaim deed?

    Thomas’s Answer

    Part of the work in implementing a trust--and which people sometimes do not complete--is the funding or transfer of assets into the new trust. To make the trust properly address the residence, i.e., to govern its ownership and disposition, yes, you do need to transfer the home into the trust. This is a transfer by which John and Mary, husband and wife, or however title is vested, transfer and assign the property to John and Mary, as Trustees, and any Successor Trustee, of the (Name of Trust), dated (date of execution).

    This can be done by a quitclaim deed, which assigns into the trust all title that you have and no more; there are no warranties or covenants carrying after-acquired title. A grant deed includes full warranties of title and if you want to be assured that any rights under any applicable title insurance policy are also assigned, that would be an alternative choice.

    Make sure that any notices making out exemptions from property tax reappraisal which might apply in your jurisdiction are filed with the deed. You should have a title officer or estate planning attorney check the deed over before you record it.

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