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Benjamin James Sowards

Benjamin Sowards’s Answers

31 total

  • Dad's wife refuses to honor the Durable POA my dad gave to me, she continue to override my decisions when I'm not around

    I have a Durable POA for my elderly dad that suffers from advanced dementia, He is married, but separated. My dad's wife ask to be granted POA while he was in rehab. The nursing home admin refused because they did not feel she had his best intere...

    Benjamin’s Answer

    In CA and most other states a person needs a power of attorney and advance health care directive. The POA governs legal and financial matter and the AHCD governs health care matters. Usually they are separate documents. You should go to the county recorder to record the DPA. You should then bring the recorded DPA to the care facility so that they understand that you are in charge and that the document has been recorded in the county.

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  • What are my options if my younger sister fraudulently emptied a POD account which she was a beneficiary on?

    My mother recently passed away. She had a POD account with myself and my two sisters as beneficiaries. When I went to the bank they told me I would only be getting a few hundred dollars. I notified them that there should be a lot more money i...

    Benjamin’s Answer

    Unfortunately you will need to hire an attorney to allege fraud or undue influence. Hopefully you can work it out with your sister before going to court. Many, many people see a dying parent as their last chance to get what they can before the parent dies. I hope you have success.

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  • How is it determined what State an irrevocable trust is in?

    My Uncle lived in N.Y &.had an Irrevocable Trust drawn up & signed. Soon after, the trustee moved him from N.Y. to N.C. & placed him in a Home. I THINK the trust money was moved from NY to NC, too. There is a house in N.Y. that is in the trust. Th...

    Benjamin’s Answer

    Usually the trust will state which state law applies. Some people living in CA or elsewhere set up trust in NV or WY or somewhere else b/c they seek the favorable protection of those states. You will need to read the trust to see what law to apply.

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  • This is irrevocable trust. Doesn't this go under contesting.

    I am a trustee on living trust. The house I live in needs to be sold. I advice my brother by phone and by certified mail . We will start things first part of this year. He pass in dec. so now his daughter contacted other trustee . And response was...

    Benjamin’s Answer

    No, under normal circumstances, this would not be considered a "trust contest" or "will contest." This would be considered a petition to remove trustee for breach of fiduciary duty. It seems premature for your brother to file this sort of action, but some people just want to have their "day in court." You should speak to an estate planning or trust administration or litigation attorney in your county to retain their services to defend you as trustee. As trustee you are liable for any breach of your professional or fiduciary duty ... although you haven't listed anything in your post that would normally qualify as a breach of duty so far. I wish you well and keep in mind that you were selected to be trustee for a reason. it is a blessing and a curse. But with the right help you should do fine.

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  • What rights do I have as a tenant with mold in our rental when landlord refuses to provide mold inspection?

    We are on month to month and discovered that smell was coming from under the kitchen sink due to water leakage from outside. We are not responsible for mold but landlord is demanding for us to vacate without providing alternative housing. We are l...

    Benjamin’s Answer

    If Landlord refuses to conduct inspection, since this is a residential unit, you are allowed to pay for the inspection yourself and then deduct from the rent. Your requests must not be unreasonable and you must give the LL notice that you will conduct the inspection without him if he refuses to proceed. If there is a safety issue, the LL can require you to vacate. You should receive back your deposit as long as no damage caused by you beyond normal wear and tear.

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  • Can I represent myself inprobate court? My sister won't put the property in my name and my mother wishes are not being met

    I want my sister to put my inherited property in my name already over a year now.

    Benjamin’s Answer

    Yes you can. It does happen from time to time, although it is best to hire an attorney. The probate court in Santa Clara County is very busy - it is the largest county in the SF Bay Area. The Judge (Hon. Cain) is well versed in the law and is often sympathetic to individuals without an attorney (pro per). The probate examiners and clerks are also very helpful. However, there are strict rules to keep the probate process moving and if you mess up those rules or filing requirements your case could be dismissed. You may want to consider working with an attorney for a one hour consultation to see what can be resolved informally without going to court. You should take any wills or trusts to the attorney so that she/he can give you their best legal opinion. Your mother's written wishes should be followed. Something she might have mentioned, but never documented, is not likely to be followed by the personal representative or the courts. It is best to assert yourself early in the process to make sure that the successor trustee or personal representative is following California law.

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  • If I am 80 years old and I am under a conservatorship by the Office of Public Guardian..

    which petitioned me in a hospital where a court investigator interviewed me and I opposed it entirely and stated to the CI " I want the county top leave me alone and I want out of this hospital and added my son is my care taker and I asked him to...

    Benjamin’s Answer

    This can happen when the county believes that those around you are scamming you or taking advantage of your situation. Generally, the county is looking out for your best interest. If, however, you disagree, consider hiring a court appointed / approved conservatorship attorney to work on getting your conservatorship removed or to allow you to work with a private fiduciary. I've seen this happen in Santa Clara County recently.

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  • Can a trust gift money to a beneficiary

    Can a family trust gift money to a beneficiary and are there any limitations on it? Thanks Jb

    Benjamin’s Answer

    Yes. It is possible. What does the trust say on the subject? First, you always look to the trust document to see what it allows or disallows. Some inferior trusts or those produced online or in a "trust mill" are often silent on these issues. You may need to work with the successor trustee and a lawyer to determine what is appropriate under the circumstances. Often people set up trusts with specific gifting guidelines (e.g. $10,000 when X graduates college). First review the trust on your own to see if can determine the anwer on your own. If you need help, consider a local reputable attorney in your area.

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  • My mother's living trust was never funded.

    Can I file a Heggstad petition myself? Can I avoid probate? There are two houses that are said to be IN the trust (signed and notarized by lawyer) but they were never actually put IN the trust. Can the lawyer be held accountable?

    Benjamin’s Answer

    You will be able to avoid a full probate. You will need to file the Heggsted petition in order to have a judge approve the transfer. You will be out filing fees (about $400), plus whatever it takes the lawyer in time to prepare the materials. If the lawyer is good, and the court understands everything submitted, the lawyer likely won't even need to attend the hearing. You can expedite the process by paying a little bit more to the court and going Ex Parte. That way you get moved up in the wait list and get your matter heard ahead of schedule. I've never seen a client attempt this on their own, but I suppose it could be done if you have enough time to figure it out. It isn't rocket science, but it can be difficult to navigate all of the local court rules and the California Probate Code.

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  • Must a corporation or organization incorporate in the state in which it intends transact business in order to have legal autho

    the last sentence of my question is legal authority.

    Benjamin’s Answer

    No. But you should register as foreign corporation and be authorized to transact business in your state of domicile.

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