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Dwight Edward Tompkins

Dwight Tompkins’s Answers

48 total


  • Must I submit a "Preliminary Change of Ownership Report" with my Affidavit of Change of Trustee?

    The property is in the name of 3 trusts. The trustee of one of the trusts passed away. The successor trustee of the trust that owns 50% of the property is submitting an Affidavit of Change Trustee to be recorded with the county. Aside from a certi...

    Dwight’s Answer

    I always submit a PCOR with an Affidavit of Change of Trustee to avoid the client paying the extra $20 recording fee, and to establish the exclusion of the recording from reassessment, as well as to establish the address for the tax bill mailing.

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  • Can you create a revocable living trust and fund it later?

    In California, can you create a legal revocable living trust and fund it later? Another words, does the revocable living trust only exist and become legal when funded or can you legally create a revocable living trust at any time and fund it at ...

    Dwight’s Answer

    The trust should be funded with at least one asset or with money for the trust to become immediately effective. Generally, further funding of the trust then can take place at anytime by the settlor (trustor) of the trust. The trust declaration or trust agreement should include a section that allows for additions to the trust estate in the future.

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  • Can the successor trustee also be a beneficiary to the trust?

    In California, can you create a revocable living trust and name the successor trustee to distribute assets upon death of the the original settlor/trustee as the beneficiary to the trust assets?

    Dwight’s Answer

    Yes, and in many family trusts, this is very common. Every situation is different of course, and it may be advantageous to have a successor trustee who is not one of the beneficiaries; but there is no legal prohibition to having one of the beneficiaries serve as the successor trustee.

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  • Estate Law. In California, how many witnesses are required to validate a Testators signature on a will ?

    No detail

    Dwight’s Answer

    Two witnesses present together with the testator at the time of the signing, and the signing of the witnesses.

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  • Do I have to list a joint account in an inventory and appraisal for probate?

    I have been given mixed advise as to whether I have to list an account in both mine and my father's name on attachment 1 of the inventory and appraisal. I am petitioning for successorship on an estate less than $150,000 which includes real and per...

    Dwight’s Answer

    If this is a joint tenancy with right of survivorship account, it should not be included in the inventory of the probate estate as a general rule.

    If the account is set up differently, as a tenancy in common, for example, or you are merely a power of attorney on the account, then the account (or some part of it) will be considered part of the probate estate in California.

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  • Will estate need to pay creditors listed on will?

    Creditors was informed to file claims late--more than 10 months after decendent past. Creditors are rejected with the reason of past 1 year SOL.

    Dwight’s Answer

    Usually creditors are not listed in the will. If this is a California probate, and the claims period has not expired, a creditor may make a claim in the probate case, whether or not the claim is "listed" in the will. The executor may either accept or reject the claim. The court will ultimately decide on the claim.

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  • How can we find out whether we are beneficiaries in a Trust ?

    We are a family of 4 children. 8 years ago my father remarried and epuchased an office building in Arizona under the name of Our Family Trust ( primary owner ) and another trust under the name of my father and my stepmother as secondary owner. We ...

    Dwight’s Answer

    I agree with the previous answers. Even if the trustee, for some reason, refuses to give you a copy of the trust document; you may want to ask other members in the family if they have a copy of the trust. You have to be careful, because they may not have an up to date version of the trust, but it would give you something for your attorney to review and follow up on.

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  • Is a hand written, notorized power of attorney legal?

    My friend is incarcerated, he has written out his wishes and signed it in front of a notary. I need to know if the scope of this document which includes, medical, legal, financial, and general areas is legal.

    Dwight’s Answer

    I agree, the mere fact that the power of attorney is handwritten is not a problem. The problem is that there are various kinds of powers of attorney. Even if the power of attorney has all of the legal elements contained within the document, it may still fail if a 3rd party will not recognize it. For example, if the power of attorney gives the agent power to handle bank accounts, but it is not specific enough (bank name, account number, etc.), the bank may reject it as too vague.

    Some banks and other institutions have their own form of power of attorney. You should check with the 3rd party you want to deal with to see if they have their own form.

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  • Is "pay on death" or "transfer on death" good enough?

    I own relatively simple assets (bank accounts, 401(k), IRA, taxable trading account, a low-value used car, some jewelry, and other low-value stuff like TV and old laptop). I have no significant debts, no wives (past or present), and no children. ...

    Dwight’s Answer

    Sure, you could do it that way, but I believe the testamentary trust will have to be created by the probate court, as the beneficiary of your POD accounts will be the estate. You will save money during your lifetime by avoiding the creation of a living trust, but the costs and fees of probate will most likely be greater than the cost of the creation of the living trust. In other words, you will save money, but your estate will not. You should review this plan with an estate planning attorney in your state.

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  • What is the tax burden on a home that is in a living trust

    owner passed away and those named in the trust (2 people) want to know the tax liability. original cost 78000, current value 375000. can the original cost basis be adjusted??

    Dwight’s Answer

    It somewhat depends on the year that the decedent passed away. Generally, the tax basis "steps up" to the fair market value on the date of death. If the property is sold within 6 months of the date of death, then you can use the sale price as the FMV. If the decedent died in 2010, the rules are more complicated, because the "step up" in basis was eliminated for 2010. Estates in 2010, got the "carry over" basis. There are some ways around this that can't be gone into here. You should talk to a Certified Public Accountant or equivalent tax professional about your options. This is more of tax question than a legal question.

    On the issue of property taxes, if the property transfers to one or more of the beneficiaries under the terms of the trust, then the property tax liability may carry forward to the beneficiaries depending on your state's law. For example, here in California parent to child, or grandparent to child transfers are exempt, and do not result in a reassessment of the property taxes. This question is best answered by an attorney in your state.

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