My folks originally had a will made. They named my eldest sister executor. Later they switched to a trust, and my eldest sister was still " in charge" , but in 2010 my dad wrote a third amendment naming me successor trustee. We are pretty much wo...
In California, a trust is revocable unless it provides otherwise. Prob. C. 15400. An amendment to a trust, validly executed, changes the terms of the trust and the amended terms become the controlling terms. In other words, as long as the trust amendments were executed properly, the amended terms become the controlling terms, negating previous terms. Here, as long as your folks properly executed the amendment naming you as a successor trustee, then you are the successor trustee.
In your question, you mention both a will and a trust. If your folks properly executed the amendment to the trust, you would be the successor trustee. However, unless your folks also updated their wills (via codicil), your sister is likely still the executor. The difference is important in determining what property you are theoretically in charge of.
It is important to understand the difference between a will and a trust. Wills and trusts are separate, but complementary documents.
Wills generally govern property left in the name of the decedent. Wills generally transfer property via the probate courts.
Trusts only control the property which was specifically “given” or transferred to the trustee. The trustee is in charge of following the directions in the trust, such as transferring property controlled by the trust. This generally occurs outside of the purview of the probate court.
So you would want to check title to property, the trust declaration, and correspondence to determine what property the trustee is responsible for.
If you are the successor trustee, you may want to review the trust declaration soon to make sure you are the trustee. The office of the trustee carries certain fiduciary responsibilities, which can make you liable to beneficiaries for failure to act. There are also certain deadlines to be met. Being a trustee can be quite a bit of work and responsibility.
You might want to speak with a local trust and estate attorney to determine your responsibilities and rights as soon as possible.
Good luck!See question
This would be only if I was to become incapacitated, but I would also want my will known how I want to be cared for, in that situation.
In general, you should have a Power of Attorney (which covers financial decisions) AND a separate Advanced Health Care Directive (which covers health care decisions).
Since 2000, California has had two separate laws governing agency for incapacity. POAs for health care decisions are covered by the Health Care Decisions Law (Prob C §§4600-4806) and are expressed in documents called Advanced Health Care Directives. POAs for financial decisions are covered by the Power of Attorney Law (Prob C §§4000-4545) and are expressed in Power of Attorney for Financial Management.
Documents drafted long ago might include provisions for both health care and financial decision provisions, but you might want to have such documents reviewed by an attorney for validity under the current law.
In general, you want both an Advanced Health Care Directive and a Power of Attorney for Financial Management.
The Advanced Health Care Directive will allow you to choose an agent to make health care decisions for you, allow you to express your end of life wishes regarding the giving or withholding of medical treatments, whether you want to be an organ donor and express any funeral wishes..
In general, a POA will only allow you to select an agent to make selected financial decisions for you.
Generally, you would want the POA and the AHCD to be coordinated though, so they do not conflict. An attorney might be helpful in making sure documents are coordinated and properly executed.See question
My dad has cancer stage four. The hospital, without talking to any family, did an er surgery removing his gallbladder. this two hour surgery, turned into a six hour one with complications.Than, kicked him out to hospice to die. I got him out immed...
Attorney Weinstein provides useful advice. I would just add that you might consider speaking with an attorney versed in medical malpractice litigation. I have updated the practice areas so attorneys who specialize in the field may see this post. Best wishes.See question
My husband's grandfather left him a house in his will because of this my husband had to sign paperwork in order for his aunt to take control of the property. From what he tells me it sounds like she has power of attorney now wants to sell it and s...
To sell the house, you could have your husband sign a new Power of Attorney, naming you as the Agent. For real estate transactions, some title companies or real estate companies will look for a limited Power of Attorney specifically identifying the real property.
As for your husband’s aunt, it might be a good idea to speak with an attorney to ascertain your husband’s rights. An agent acting under a Power of Attorney has a duty to act in the best interest of the principal. If the aunt is improperly keeping rent money for herself, she may be violating her fiduciary duties and your husband may have rights to the rents, among other things.
Even if there is no impropriety, if the aunt is going to be upset and put up a fight, it would be a good idea to speak with an attorney and plan for how you will revoke her authority. In some cases, revoking the authority is as simple as telling the agent their authority is revoked. In other cases, the revocation should be in writing, provided to third parties and/or recorded in the county. The proper course of action will depend on your specific case. But when there is potential for an adversarial situation, it is best to speak with an attorney and be properly prepared.See question
My boyfriend wants to put me in his trust to inherit $150,000 if unfortunately he predecease me. I am a non-citizen and we're not married. Is there a problem?
Attorney Frederick is correct. California law does not impose any requirement that a beneficiary of a trust or a will be a U.S. citizen or a spouse. See Prob C § 6102.
Citizen-spouses do receive special estate tax benefits, which non-citizen spouses do not receive. If you do get married in the future, you might want to consider speaking with an estate planning attorney or financial adviser to discuss options to maximize tax benefits.
I would also add that if the intention is to transfer property via a trust, make sure that the trust owns (or will own) the asset. A trust can only control property that it owns. Far too often, we see trusts that are unfunded and do not achieve the intended goals.
In addition to transfers via trust, there are other ways to transfer assets outside of probate, such as a 'pay on death' account, etc... An estate planning attorney may be able to assist in setting up a plan to achieve your boyfriend's intended goals.See question
My aunt is leaving me a piece of land, its probably worth about 40,000 dollars. How much tax will I owe on it. would it be better if she gave it to me as a gift, or would it be better if I bought it from her for a small amt. of cash.?
The answer may depend on when and where your aunt passes away. However, if the $40,000 piece of land is the only property being transferred, it is unlikely that any estate taxes would be required. If your aunt passed away this year (2012) there would be no estate tax on any inheritance on amounts under $5.12 million. California has no estate tax in 2012. The answer might be different if you or your aunt are not U.S. citizens/residents.
In general, it is better to receive property as inheritance rather than as a lifetime gift. Inheritance receive a "stepped up basis" on the date of death of the decedent. In short, that means that when if you sell the property shortly after receiving it, you can use the 2012 basis and would likely pay little/no income tax on the sale.
On the other hand, purchasing property or receiving a lifetime gift will retain the transferror's basis. In short, when you sell the property, you would use the value of the property when your aunt purchased the property. If your aunt purchased the property for a low value, you might be liable for income tax when the property is sold.
Another issue may arise if one purchases property at less than fair market value. The IRS might consider the difference a gift or raise other red flags with the IRS. Estate and gift tax is a complex area of law and can be very fact specific. It would be a good idea for you and/or your aunt to speak with a CPA or attorney about your specific situation.
It is unclear if your aunt has a trust or if you are a joint tenant, but if not, probate might cause a larger problem than estate taxes. In general, transferring real property in California requires probate. The California Probate Code has simplified methods for transferring real property less than $150,000 or $50,000 in 2012. It would be a good idea to speak with an estate planning or probate attorney to avoid problems in the future.See question