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Michelle Ellen Anderson

Michelle Anderson’s Answers

11 total

  • What can be done legally to prevent my fathers siblings from harassing my mother?

    My father had a severe stroke in December 2013. He is recovering nicely now, though he had some setbacks early in the process. During his hospital stays my mother has had issues with his siblings trying to take over. For example they didn't agree ...

    Michelle’s Answer

    I am in another state. The other answers seem like good ideas. I will add that in California, on these facts, another option to explore would be your mother obtaining a conservatorship over your father. This is a court proceeding. But what she would end up with is a court order that she has sole authority to make decisions about his living situation, use of his funds, etc. On the flip side, it would be an added expense and requires ongoing court accountings and hearings over the years. But, this situation sounds so challenging and unusual (for siblings to step in like this, when there is a spouse and child) that I think it would be worth consulting an elder law attorney or a probate attorney there, who can advise on this.

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  • Can I charge my moms estate for past rent and caregiving while she stayed with us without jeopardizing medicaid status?

    She recently passed away. We didnt charge her then because she was applying to get in a long-term facility and needed all her funds to be eligible for that facility. Can I get paid anything from her estate now? She doesnt have very much money left...

    Michelle’s Answer

    I am in a different state, so not sure on your Medicaid laws. However, if you did not have an agreement with your mom that she would pay you rent and for caregiving, it is not legal in California to charge for it after the fact - it's sort of making up a contract after she died. I think the idea here is that your family is looking to avoid reimbursement. There may be some things that the estate is allowed to pay for before the Medicaid lien. You might be able to consult with someone there regarding whether first can be paid last expenses (funeral) and last bills, and maybe the attorneys fees for someone to handle the estate for you (including answering these questions about the estate for you). Sorry you are in this position. I can't tell from the question, but if she was only in a facility for a short period, the lien may not be large. Hard to say. Good luck.

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  • Is there a disadvantage to me or my siblings if I do a Quitclaim to buy them out of my mother's home under a Trust?

    My mother passed away this pass February and her home under the Trust is to be divided between me and my two siblings. My siblings have agreed that I can buy them out. I am thinking that I can do a Quitclaim and keep my mother's Prop 13 (CA) tax...

    Michelle’s Answer

    I think the other answers are correct - the type of deed (quitclaim) is not really the issue, the issue is that when you buy property from your siblings, it is a sibling-to-sibling transfer, not a parent-child transfer, and you would only keep Prop 13 on your 1/3 you inherited, and 2/3 you purchase from siblings would be reassessed. There are ways to get to where you want to be. However, if the house is the only asset in the trust, the path is complicated and could require outside financing. Do not attempt this on your own. As mentioned, the cost of increased property taxes over the many years you keep the property could be significant. You need a trusts attorney familiar with reassessment practice to evaluate the numbers and advise you how to do this.

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  • I am trying to get copies of documents, from the trustee, of my deceased grandmother's estate.

    According to the trust, I am a fifty percent beneficiary. I have made many request for documents already in her position. Such as an inventory of the items she put in an auction, and what they sold for. As well as previous Tax returns of the estat...

    Michelle’s Answer

    I Think maybe you have two questions:
    1. As a trust beneficiary, in California you are entitled to reasonable information regarding the trust assets. All the things you mention may or may not fall under that guideline of what the trustee would need to report to you. But an attorney can help you refine what you are asking for so you are asking for things they legally need to report to you about.
    2. Regarding "retainer" versus advance on fees: In California, true "retainers" are not so common. A true retainer would be, you pay this amount of money for the attorney to be your attorney, then you also pay hourly for their work. That might be common in the state you live in. What you are describing that you want, to pay an advance on fees so to speak, and then have the attorney bill against that "retainer," is more common in California and I do think you will find that attorneys who represent beneficiaries would be fine working in that manner. You will want to be sure to review the engagement documents (fee agreement or letter) with the attonrey to be sure, but I think you will be able to find an attorney to work for you on these terms. Good luck!

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  • Can estate of deceased spouse demand reimbursement for monies brought into a marriage?

    My spouse recently passed away. we were married for 15 years. Before we were married, he had about 25,000.00 in a separate account. That money was eventually commingled into an account that also had community income. Over a period of about 4 y...

    Michelle’s Answer

    California Family Code 2640 has to do with a spouse getting reimbursed for separate property contributions to the community, in the event of divorce. There is an issue as to whether this section applies at a death. I mention that because if the term "reimbursement" is being used, this might be the concept they are thinking about. A family law attorney would be able to advice regarding application of the section. (perhaps your estate attorney can consult with a family law attorney for you on this question.) As others have mentioned, the commingling of assets as well as the joint tenancy with right of survivorship title all will affect this potential claim as well. I am sorry for your loss and good luck with this probate.

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  • Two people have marriage license...seeing an attorney re prenup...both have living trusts in place. What is the difference

    Women has home paid for..Man has monetary investments...wanting to ask for $$ in prenup to maintain house in the event of death by male in return for man living in house after woman dies..both have living trusts for children of different marriage....

    Michelle’s Answer

    California has laws that address the requirements for prenuptial agreements. These are complicated legal documents and the couple is strongly advised to not only have an attorney prepare it (they should not do this on their own), and moreover, to help ensure future enforceability, each spouse is strongly advised to have their own attorney review it (one could do the first draft, then the other review). Yes, this makes prenuptial agreements expensive! But, the risks are just too great to try to do it on your own.
    Also, I can't completely tell but as to the part about maybe the husband could live in the house after wife dies... this part is someting that might be addressed in an amendment to wife's living trust.
    I think as others mentioned this project will need both changes to each trust (to address post-death gifts/use of property) and a prenuptial agreement (to address lifetime rights regarding property, and divorce). For efficiency, a starting place would be for each spouse to contact the attorney who did their living trusts, briefly explain the situation, and see if those attorneys do prenuptial agreements and go from there.
    Good luck with all of this!

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  • Mom wanted all 3 siblings together on her Medical DPOA attorney said no, but Mom wrote up an attachment can it become legal?.

    Mom has dementia, 3 yrs ago she gave me her DPOA for Medical and Financial. I have cared for Mom for 8 years, because both sisters work. I am exhausted and began having panic attacks. I told my older sister I would give her Mom's Medical POA ...

    Michelle’s Answer

    Briefly, in California it is legal to have multiple agents on an Advance Health Care Directive (AHCD) , but discouraged by attorneys, and by medical professionals, because when you do this, if the agents do not agree, you are left with an unhelpful sitation while the principal could be a medical limbo. Your mom's attorney made a good point.

    The forms many attorneys use are set up to name only one agent (and then sometimes backup agents to act if the first agent is not available). But, the form can be adapted to make it for multiple agents.

    To make it legal would need (best) a new AHCD revoking the old one and adapting the form to make it three co-agents or (not so great) try to do a formal Amendment to the AHCD.

    However, there is a big issue that your mom may not have the capacity to make legal decisions now. Also, this project should be done by an attorney.

    Maybe your mom can consult with her existing attorney, taking her handwritten change so the attorney can clearly see this is something she was contemplating on her own, and see if that attorney can help her do a new AHCD naming the person(s) she wants. Remember, only your mom can give someone the AHCD, she needs to be able to make the decision on her own.

    Also, as another thought, your situation seems very stressful and challenging, and changing the AHCD alone may not fix that. There might be resources in your area that could help you get some help, like adult day care or respite care so you have a break from caregiving, or support groups to get some support and helpful ideas when serving as primary caregiver for a parent. Your mom's attorney may know of resources, or her doctor may know of some resources for caregivers. In my area our local hospice agency offers information about caregiving, and there is a Seniors Council that helps connect people to resources. If you find you do not have time to explore these options, maybe a friend could help you investigate.

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  • Do you need a lawyer to write up a will dispersing your property or is a notarized letter good enough ?

    My grandmother is 94 she still gets up every morning dresses and cooks her own breakfast. She's in her right mind. She owns land, houses, and furniture in her name. She was wondering can she just write or type a letter and get it notarized statin...

    Michelle’s Answer

    In my state, a typed and notarized letter would not constitute a Will and would not work (absent a complicated court petition to try to prove the document is a will but that is outside the scope). It would be far, far easier to just do this correctly as a will, under the laws of the state where she lives. One idea to explore is to see whether your grandmother's state has a statutory form will. This might be something she could possibly use on her own. But on the other hand, in some states, doing something a little fancier now (such as a living trust rather than a simple will) can save a lot of money at death (by for example avoiding court probate process and allowing for distribution without court involvement.)

    I have to say, whether she chooses a simple will or something else, that an estate plan is something that really should be done by a lawyer. Your grandmother owns land and houses... I think it might be a costly mistake to try to save a little money now, that could result in larger attorneys fees after her death. I know that's not what she probably wants to hear, but she can let the attorney know before she even comes to an appointment that she wishes to minimize attorneys fees and her attorney can help her find the best way to do her estate plan efficiently. Good luck with this.

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  • Going through a divorce. What is sufficient written consent from my spouse for me to transfer my house into a living trust?

    I understand that assets are frozen when going through a divorce, but there is a family law code (2040?) that says I can transfer my house into a living trust with the written consent of my husband who I am currently divorcing. The house was deede...

    Michelle’s Answer

    I am not a family law attorney. But in California, once you are in a divorce, the ATRO's apply (Automatic Temporary Restaining Orders.) One or more of them have to do with restricting retitling property, and with restricting changing beneficiary designations. The policy behind this law is to prevent a divorcing spouse from unilaterally taking or hiding assets (makes sense). But a side effect is preventing transfers to and from a trust during the divorce, without the written consent of the other spouse, or a court order. It seems like the person asking already knows about this. I am not sure there is an official form, if you do choose to continue to do this yourself, I think the written consent statement should also be notarized.

    You raise the issue of the house being separate property, but then possibly mortgage payments being made from community funds. There could also be an issue of separate property reimbursement. Therefore you have identified that there could be a question about CP vs. SP on this property. I believe you and your husband can agree to whatever you choose in a divorce, but I do not know whether, but not having an attorney, the marital settlement your husband enters with you can be called into question later. It might be worth at least a consult with a family law attorney to be sure that your final marital settlement agreement properly addresses all of this and protects you.

    All that being said, I strongly recommend you have an estate planning attorney draft your new (single person) revocable living trust, and that same attorney can look at this situation and will hopefully be able to advise and assist you regarding the proper consent your husband should sign to allow the transfer. This is a situation where some legal assistance now could prevent significant issues later (like a dispute about title to the house).

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  • What does a gift "outright" mean in a living trust document?

    Friend's mom's trust stated that he is to get one of her houses "outright," but there's a tenant in it and a mortgage on it. What would that mean? Does the rest of the stuff have to get sold in order to pay off the mortgage and give him the house ...

    Michelle’s Answer

    Without seeing the document, "outright" in California drafting, used alone like you describe, often means the beneficiary gets it when the trustor (here, friend's mom) dies. (As opposed to, your friend receiving it "in trust" such that it stays in a trust for your friend for life, or until he reaches some age. ) Used this way, the term "outright" would not have to do with the mortgage or tenant, it has to do with receiving it "outright and free of trust" rather than "in trust". As to the mortgage, if the trust documents says nothing, the beneficiary gets the property subject to the mortgage under California law (i.e. with the mortgage still in place, and the trust does not pay it off). If the trust document overrides the default law and says friend gets the property "free and clear of any encumbrances" or similar, than the trustee would, as you describe, pay off the mortgage first before distributing the property to your friend. I think for the answer to this question, an attorney is going to need to review the trust document. The language about this could be located in the same area as where the gift of the house is described, but on the other hand it could be located in other trust sections. It might be that the attorney who drafted the trust could be consulted. Good luck!

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