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Rosemary Jane Meagher-Leonard

Rosemary Meagher-Leonard’s Answers

563 total

  • What should my next step be

    I live in San Diego and my cousin just came here like 5 months ago and asked me to take in her son that's been living with me and for about 8 months and we would love to do it but we want to know how much would it cost us

    Rosemary’s Answer

    I am presuming that your cousin wants you to assume guardianship of the child. Is that correct? You are to be commended for your willingness to take on this responsibility and for providing a home for the child.

    As Attorney Swiller advises you, you may want to contact several Probate attorneys as attorneys charge at different rates. That way, you will have a realistic expectation as to the expense involved.

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  • When Is it necessary to have two separate trusts?

    Is it wise or beneficial to have two separate trust? when is this needed? trying to keep parents who are both pasted trust same.

    Rosemary’s Answer

    I agree with Attorney Doland. Your post is confusing.

    Are you saying that your parents both passed away? Are you trying to maintain their trust for the benefit of two (or more) beneficiaries? If that is the case, that is ordinarily not how most trusts work. With some exceptions, most trusts are meant to be distributed after the death of the Trustor, or where two Trustors, after the death of the second one to die.

    If you and any others are beneficiaries under your parents' trust, then after the trust estate has been distributed, and assuming that such beneficiaries have not created their own rust, each individual may want to consult with an estate planning attorney to see if a trust for his or her own is appropriate.

    If this is not the question you are trying to ask, use the "comment" tab to clarify your question.

    Also, since your parents created their trust and are now deceased, the successor trustee administers the trust. There are several tasks required to be completed by the successor trustee.

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  • How can I avoid probate since my father has past suddenly and he did not have myself or my two brothers listed a beneficiary?

    In January of this year my father pasted unexpectedly. After going through all his paperwork and talking to his employers, my 2 brothers and I have discovered that our father had no one in charge or his assists. Now, 7 months have past and we are ...

    Rosemary’s Answer

    I am sorry for the loss of your father.

    As the other attorneys have advised you, if the value of your father's estate is less than $150,000.00 and since more than 40 days have passed since his death, you and your brother can utilize the small estate affidavit under Probate Code Sec. 13100 to collect his property.

    If your father's assets are greater than a $150,000, then you would need to go through Probate in order for the property to be distributed.

    The spouse from whom your father was separated for 16 years (but not divorced from) could be problematic if they did not have an executed marital settlement agreement or a prenuptial agreement that prevents her from inheriting from him. Under the Probate code, when someone dies intestate (without a will), the estate is required to be divided in a certain manner. In your case, there are two children and a spouse. So, the estate is supposed to be divided 1/3 to the spouse and 2/3's to the children. When there are two children you and your brother would receive 1/3 each.

    I would recommend that you consult with a Probate attorney so that you can learn more about what you and your brother can do to settle your father's estate.

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  • Should I contact police regarding a threatening and demanding letter?

    I got a threatening letter from brother instructing me not to enter or take things from mother's home. Says I am not the legal owner (neither is he), eluding to I will be arrested if I do not comply. Says he's already reported me to authorities f...

    Rosemary’s Answer

    I'm sorry to hear about your situation.
    I agree with the other attorneys here. You should contact adult protective services so that they can investigated.

    Thankfully, your mother had the foresight to appoint you as her agent under a durable power of attorney in order to manage her assets. However, based on your brother's actions, it also sounds a Conservatorship is now necessary. I recommend that you retain a Probate attorney to assist you with this.

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  • Can I make a request for a restraining order on behalf of my 80 year old Mother in early stages of Alzheimer's?

    Mom is 80, widowed last year, and in the early stages of Alzheimer's. My 50 year old brother is a broke, bi-polar alcoholic with medical problems who spent the month of September in jail for assaulting his girlfriend. He has stolen money from Mom ...

    Rosemary’s Answer

    I'm sorry to hear about your mother's situation.

    You should hire an attorney to represent her and to assist with obtaining the restraining order. The individual (your mother) must be the one who brings the action. The only exceptions to that requirement is when the one who needs the restraining order is under a Conservatorship or, of course, if the agent is aloes an attorney. That doesn't appear to be the case here.

    . Power of attorneys are useful for a lot of situations but cannot be used to represent another individual in court. Only an attorney can to that.

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  • How to get rid of potentially violent house guest that will not leave?

    My sister allowed a friend to move into her home for a few months as a free guest and now, the friend refuses to leave. It has been about 9 months since the friend moved in. There is no rental agreement as my sister was doing this to be kind to h...

    Rosemary’s Answer

    The other attorneys have provided you with sound advise.

    I would just add that based on the facts you've described, the answer is that your sister can also obtain a temporary restraining order that includes requiring the guest to vacate the premises. After the temporary restraining order has been obtained, the court will set a hearing/trial in 15 days. At that hearing, your sister will need to present clear and convincing evidence that an injunction should be ordered that will prevent the guest from contacting etc. your sister for a period of three years.

    Since you've expressed concerns that this individual could become violent, even if your sister also needs to serve notice on the friend to vacate the home and then proceed with an unlawful detainer, she should first obtain the TRO.

    Your sister should consult with an attorney to determine the best course of action.

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  • What can i do to protect my children if i want them to receive all of my assets instead of my husband?

    In an attempt to reconcile our marriage after a more than rocky start including not living together for the first 4 yrs, i sold my house that i bought before i married and bought another house in me and my husbands name this year. I have 3 childre...

    Rosemary’s Answer

    As the other attorneys have advised you, the situation you have described is too complicated for a public forum. You should consult with an estate planning attorney who has experience in estate planning that involves issues of family law.

    There are things you can do to rectify this situation but you need to consult with an attorney as soon as possible.

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  • How do I dismiss my fa's court appointed attorney who has false intentions and plans to file a petition to remove me as trustee?

    My brother filed a frivolous petition for conservatorship over my 85 yr old father who I have placed in a secure memory care- dementia unit of a Assisted Living facility four months ago. In the petition he wants to have an independent fiduciary ...

    Rosemary’s Answer

    Have you responded to the petition yet?
    I would strongly recommend that you consult with an estate planning/Probate attorney as soon as possible. An attorney can you will advise you as to the best course of action in this case. In the case of the Conservatorship and if there is a petition to remove you, you should retain such an attorney to represent you in your objection and as trustee. Also, from your post, it would appear to be a good idea to also speak with the attorney regarding your duties as trustee.

    I'm a bit confused as to what you mean by a "improper investigation report taking a false adversarial viewpoint"? Are you referring to the CAA's report to the Court? It is important to remember that your father's CAA represents your father. However, you can (and should) object to the CAA's findings and report in your response to the petition.

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  • Can you set up provisions in a living trust that say a special needs trust can be set up later by a successor trustee?

    I read through my parents' living trust and it says that "the only way to protect a beneficiary entitled to government support is by creating a special needs trust, excluding that person as a beneficiary of your living trust, and making that indiv...

    Rosemary’s Answer

    I agree with Attorney Bergman. The best approach is to have your parents create a stand-alone Special Needs Trusts. Most Special Needs Trusts contain provisions in the event that such a trust is no longer needed.

    Special Needs Trusts is a specialized area of estate planning and should be drafted by an estate planning attorney who has experience in this area. If the Special Needs Trust is created, then your parents' trust should also be amended to refer to the SNT and to instruct the successor trustee regarding distribution to that trust.

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  • What will happen to a trust property when the trust dies, and it is left to someone other than the executor of the estate?

    There is a declaration of trust leaving an Ira and savings account to the beneficiary who is not the executor of the trust nor do they have power of attorney.

    Rosemary’s Answer

    The beneficiary and the trustee of the trust do not have to be the same person. The successor trustee is required to administer the trust according to its terms and the Probate Code. This is a several step process and includes various duties including having to file tax returns and provide certain notices and copies of the trust to the beneficiaries, among other things. When it comes time for distribution, the successor trustee will distribute as the trust provides.

    If the beneficiary is named on the IRA or savings account as a pay-on-death beneficiary, then the beneficiary can contact the bank/financial institution directly where the IRA and savings accounts are held. Otherwise, it is the trustee who handles those matters.

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