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Robert Paul Bergman

Robert Bergman’s Answers

231 total


  • When does a trust become irrevocable?

    I became successor trustee when my father was found incapable of managing his finances, and my mother resigned as trustee. At that point, the attorney recommended a new certificate of trust and a new EIN. Everything is now in the new EIN as of 2...

    Robert’s Answer

    It appears from your question that your parents had a joint trust. Strictly speaking, if one of the trustors of a joint trust (e.g. your father) becomes incapacitated, the joint trust becomes irrevocable at that time, subject to your mother's possible right to revoke the trust as one of the original trustors and owners of the property in the trust.

    Now that your father has died, his portion of the trust estate remains irrevocable, and needs to be distributed by the terms of the trust. If, as you indicate, the trust has a discretionary AB split (which suggest some form of "disclaimer" trust planning), then there is still administration needed to confirm where your father's share of the trust property is now owned, even if it passes to your mother and stays in the trust for her exclusive benefit.

    In any event, a review of the actual trust document is the starting point for every answer. You should consult with estate planning legal counsel to determine what needs to be done to implement the trust's directions for your father's property.

    Whether or not anything needs to

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  • Does a B trust have to be created after my father's death?

    I am fiduciary/trustee for my parents' trust as of 2 years ago when my father was found incapable, and my mother resigned from the trust. At that time we got a new certificate of trust and new EIN. My father passed away late last year. I'm look...

    Robert’s Answer

    There is no practical way to answer your question without having a qualified attorney look at the trust document itself to see what it actually says. That's especially true if the language of the trust is ambiguous about the requirement to create and fund B Trust (also called a bypass trust, and several other names)

    If the trust requires the creation of a B Trust and requires funding it with your father's share of the trust property, it may be that there is real reason to do that from an estate tax standpoint. In that case, it may be possible for the family to petition the Probate Court here in Santa Clara County to remove the requirement that the B Trust be created and funded.

    You need to have the trust reviewed before any further action can be taken.

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  • Trust question

    Do assets in a irrevocable trust get a second step-up in basis on the death of the surviving spouse?

    Robert’s Answer

    Generally no, unless the trust granted a general power of appoibtment to the surviving spouse (not common).

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  • Does someone that received an inheritance under $10,000, in 2013, have to pay taxes on it & is it considered an income?

    My sisters & I received an inheritance from my deceased mother's IRA in 2013, which was under $10,000 each. The place that this IRA was being distributed from asked if we wanted any money to be withheld in case there were to be taxes needed to be...

    Robert’s Answer

    Distributions from IRAs are taxable income in the year received, with the exception of distributions from ROTH IRAs.

    The 1099 you received in the following year after the distribution was to inform you that you received taxable income, and taxes should have been paid for the tax year in which you received the distribution.

    The company making the distribution did withholding for you, and also provided with the necessary tax form. They had no obligation to advise you about your personal tax liability.

    You will owe the taxes and a likely penalty for failure to pay the taxes on time.

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  • Can a lg trust that was left to me have a trustee (currently a company) and a personal representative to look out for me?

    My grandmother died in 2000 and left a sizeable trust. I've done nothing with it since then as I have a good job I like, live simply, and didn't feel a need. The trustee changed a few yrs ago and we don't get along and I've felt he hasn't been l...

    Robert’s Answer

    The answer to your question at to whether or not you can replace the current trustee starts with the actual trust agreement. You will need to have an attorney review the trust agreement to see who has the authority to remove and replace the trustee, and to see whether you as the beneficiary have the authority toNo

    No simple answer can be given to your question without an actual review of the trust document.

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  • Moving from New York to Palo Alto and was wondering if I will have any estate planning issues?

    I'm married, have a revocable living trust but not to many asset so estate tax is not an issue. I'm just concerned about community property because NY is not a community property state.

    Robert’s Answer

    I suggest you contact a local estate planning attorney to have your trust updated to reflect California law. The differences between New York and California in the estate area are striking, and you really should have your estate plan revised to reflect that.

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  • Which lawyer specialization I should seek to arrange who takes care of my young children when both parents die?

    My husband and I are seeking to work with a lawyer who deals with setting up trust for children upon the deaths of their parents. But we are not sure of the specialization field we should be looking at.

    Robert’s Answer

    I agree with the other attorneys. An attorney who specializes in estate planning is your best option. Besides planning for guardians for minor children through a Will or separate Nomination of Guardians, additional planning for small children may be advisable.

    Also, how property is passed on to children is crucial, especially when you factor in the various ways that inheritances can be lost after being received by a child.

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  • Amending Special Needs Trust

    Needing a Special Needs trust immediately in anticipation of an insurance settlement, can the trust be more finely tuned later.

    Robert’s Answer

    A special needs trust such as you describe would have to be established through the local Probate Court, because if the insurance settlement is for the benefit of the injured special needs person, it is actually their own property. Such a trust is called a "first party trust" or d4a trust, and you will need an attorney who specializes in such trusts. There are very specific requirements as to who can set up such a trust for the special needs person. I suggest you a member of the Academy of Special Needs Planners who will be able to assist.

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  • Annual expenses in maintaining Special Needs Trust

    Once a Special Needs Trust receives a social security number are there any annual fees due the state or Federal government. This has nothing to due with trustee fees, etc., etc.

    Robert’s Answer

    • Selected as best answer

    Short answers. There are no annual fees due to the state or Federal government solely because a special needs trust has been created.

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  • Living trust not stamped by notary.

    My grandmother's living trust was drawn up by her attorney who also signed the document after her. Unfortunately, it appears he forgot to stamp it with the notary seal. Is the trust now invalid? Can it be recorded without the notary's stamp?

    Robert’s Answer

    First of all, there is no legal requirement that someone's living trust be recorded anywhere. A living trust is a private legal document, and would only become public is someone wanted to make a change or contested it after the death of the original creator of the trust, and then it would be filed with the local Probate Court.

    Second, there is no legal requirement in California for a living trust to be notarized at all to be valid. The failure to apply a notary seal by the attorney does not affect the validity of the trust at all. It would only potentially go to whether or not your grandmother actually signed the trust in the first place. It is likely that the attorney's notary journal was signed by your grandmother, which would provide proof of execution of the trust if that was challenged.

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