Estate Planning
Category: Business & Finance
Expert: Michelle GoffAttorney Michelle Goff of Goff, Conway-Spatola Law Group in Sacramento, takes your questions on wills, trusts and estate planning.
• Submit a question
Most Recently Answered Questions
Questions 13 - 24 of 616 (Page 2 of 52)Q: I need your help! We moved my Dad in a retirement home last year and he is doing quite well. He owns a home in Hillsborough and my brother and sister want to sell it. I however am very attached and want to live there so my children can go to school there. My Dad would also like me to live there since I need more space and my siblings have big homes. My mom passed away 5 years ago and in the will it states that all assets get split 3 ways. But Dad is alive and he says it only makes sense for me to live there. They want to sell the house this year because estate taxes are low and may go up next year. Is this true? How do I save the house?
A: If you father is alive and competent, he could make out a will that leaves the house to you, with the balance of the assets to your siblings, or house to you if you issue promissory notes to your siblings for the share that they are entitled to. Does your mother's will skip your father and leave the assets directly to your siblings? If so, you may want to buy them out. As for selling due to low taxes, that should not be a worry. The estate tax exemption is $5million this year. It is generally better to wait until the parents both pass, if possible, to sell the house to take advantage of step up in basis issues relating to capital gains. Please contact an estate planning attorney for help with this.
Q: My mother made $13,000 gifts to each of her three children in 2011 and would like to continue this practice and also gift to her son and daughter-in-laws and grandchildren's spouses. If this is possible, can the check be made payable to her son or daughter for the entire $26,000? Or does the check have to either include the spouse's name or be made out to just to the spouse?
A: it should be made payable to each individual person.
Q: My aunt was a lifetime CA resident and created a trust in CA. I became the successor trustee when my aunt died in 2007. My aunt named 30 beneficiaries to share in the distribution of her assets. All trust administration tasks, including final distributions to the 30 beneficiaries, were completed in 2009 and the trust was closed. After closing the trust, 3 of the beneficiaries died in 2010. Now an unexpected check payable to the trust has been received and needs to be divided among the beneficiaries. My question is do I divide the check among all 30 original beneficiaries or only the 27 beneficiaries who are currently living? The trust document stipulated that if any beneficiary died before my aunt's death, then the gift to that pre-deceased beneficiary would lapse. The trust document does not contain any wording that relates to the current situation where 3 beneficiaries are now deceased after my aunt's death. The relatively small amount of the check does not justify the expense of a consultation with the attorney who created the trust document and represented me as trustee during trust administration. Thanks for your help.
A: If the trust is silent, I would presume that it would be 30 shares, with the 3 shares attributable to the deceased beneficiaries further divided amongst their children if they have any.
Q: My father has a revocable trust that he established w/ Ameriestate in 2000. He is now in the position of having to amend two items in the Declaration of Trust; 1) to change the name of the secondary trustee, and 2) to reduce the amounts for distribution of gifts...because his financial status has changed. When I called the company rep this morning, I was told there would be an additional fee to make the changes. We do have amendment forms and notary pages which were included w/ the original document. Would it really be necessary to pay for additional services...or could my father make the changes himself?
A: There is no requirement that you hire an attorney to make the changes, but it does provide peace of mind. If you make the changes and they aren't clear, or not properly signed or notarized, depending upon the terms of the document, then they may not be valid, or you may need court interpretation of what was written. I will note that Ameriestate is not an attorney, but a company who sells estate plans. I would recommend that you have the document reviewed by a licensed attorney who specializes in estate planning to ensure what your father purchased is complete and all assets that are appropriate are titled properly. Best of luck.
Q: To avoid probate, we are drafting a trust for my mother and a sibling will be the executor. We are using an online trust template. What do we do to formalize the document (i.e notary)? Is a separate power of attorney person/document needed for financial/real estate (for mom's reverse mortgage home details)is another power of attorney assigned for health care? What is needed to formalize the power of attorney responsibilities? Can it all be included in the trust?
A: A trust is used to avoid probate. For a trust to be valid, there must be a creator, a trustee, a beneficiary, and a corpus (assets). Generally the document is notarized so that it can be recorded if needed. One imporant item people overlook when creating their own documents is "funding" the trust. That is changing title to the trust, with a trustee named. If that is not done, then there is still probate. It is also very important to create a will, a health care power of attorney and a financial power of attorney. My recommendation is you hire an attorney to assist you with all of this. The cost now, to ensure that it is all completed properly will save you the possible expense later to fix what was not done properly or completely. Best of luck.
Q: My Father passed away five years ago with a living trust. Myself and my stepsister are co-trustees. It has a A/B Trust and a C trust. The C trust has never been funded by the co-trustee, my stepsister, after many attempts to get it done. When my Step mother got the news that my father was dying, she closed all joint accounts and one account in my Father's name only. She basically raided them all. She is now in a nursing home and the stepdaughter has been drawing $4,000.00+ out of the trust every month for her mother's care.
I have three questions. 1. Can I get back the money she raided? 2. What can I do about the assets that have not been funded? 3. Does the trust have to pay her nursing home cost when she has assets greater than the $450,000 trust?
A: There are methods to obtain a forensic accounting to determine what should be where. I would welcome being able to chat with you a little more to learn what you mean by the $450,000 trust. Was the joint trust of such an amount that all 3 ABC subtrusts needed to be funded? Just because there are provisions there for the various trusts, they may not all be needed due to the value of the estate. As to your last question, the trustee may not consume the B trust if the A trust has sufficient assets. There must be a fair allocation of the invasion of principal and income.
Q: My daughter & I own a condo as Joint Tennants. What is needed to insure the my daughter has ownership upon my death?
A: that should be sufficient for the condo. If that is all you really have in the way of assets, that would work. But you need to remember that she also "owns" the condo and it is subject to any creditors that she may have. If you have other assets you may want or need a will. Aside from planning for passing assets at your death, you should also make sure you have provisions in place in case you become incapacitated. A health care power of attorney and financial power of attorney are also very important to have in place.
Q: I am the executor and POA for my mother, who is now at end stage dementia. (Dad passed away.) My sister lives with her and is paid in addition to other caregivers. The irrevocable trust states that the estate will be divided between us and our brother, and includes the house and some investments (declining in value due to paying for mom's care.) When Mom has gone, can we dispurse whatever money is left and change the deed to be in all 3 of our names so my sister can still live there? The last estate attorney I went to said we have to do what the trust says, but didn't give any other advice.
A: If the trust provides equally among the three of you, then that is what should be done. However, if the parties agree to something different then there is nothing stopping the distribution. It is probably best to put all three of you on title so that if you decide to later sell the property after your sister is no longer living in it, the net proceeds can be split three ways. If she is to live in the house, you may want an agreement between the three of you as to whether or not she will owe rent to you and your brother. Best of luck.
Q: My husband and I have a trust with both our names on it, plus another person as beneficiary in case we are both killed together. We had a falling out with this person and would like to delete this person and change it to another person as beneficiary. How hard is this, including expense? Thank you very much.
A: Most attorneys charge hourly to make changes to trusts. The cost will really vary depending upon what needs to be done. If the trust was well written by a prior attorney, then it may just require a one or two page amendment which should not run too much in cost. However, I have reviewed trusts in the past to make "small" changes, only to find out that the trust was so poorly written that we needed to scrap the whole thing and start over. Case I can think of at the present, a woman gave me her trust to review before she came in. After reviewing it, she came in and I asked if she was married, yes, she was. Asked if she had kids, yes, 3. Well her trust read like she was a single woman who wanted to leave all her assets to her brother. She said no, it was to be a husband and wife trust, with the residue equally between their kids and her brother was only to be the trustee. She had purchased this trust from a non-attorney. I always recommend that trusts get reviewed every couple of years, and by a licensed attorney who specializes in estate planning.
Q: My mother-in-law passed away and left her deceased son's portion of her estate to her grandchildren. My brother-in-law is the executor of the estate. The estate consists mainly of two pieces of real estate. My sister-in-law wants to keep one of the houses and pay the estate the difference between her share of the estate and the appraised value of the house. My brother-in-law is decreasing the value of the entire estate by 9% stating that it would cost at least that much to sell the houses, so my sister-in-law should only pay for the appraised value of the house minus 9%. Is this reasonable? She will not be paying a real estate commission, her other actual expenses will be minor. Should I agree to this for my children? Thanks for your help.
A: That appears to be an appropriate reduction in the cost. Just step back and think what the net value would be if it was sold to an outside party, and apply the same scenerio to your situation.
Q: I am the successor trustee of our family trust and my mother has recently passed. The principal beneficeries are three grandchildren. The family house is the largest asset and is currently titled under the trust. The grandkids are interested in turning it into rental property and creating a LLC as protection from potential liability. Can we do this while the house is in the trust? Or do we need to retitle the home? I appreciate your wisdom. Thanks.
A: There is no absolute rule that prohibits the property from being deeded from the trust to an LLC, but it is not the best approach. One of the major issues if you deed it from the trust to an LLC directly is that you may trigger the assessor to reassess the property for Prop 13 purposes. The cleanest is to follow the terms of the trust and distribute outright into the grandchildren's names. At the same time, you would file forms with the assessor notifying them of the "change in ownership". If possible, you would want to try and qualify for the parent/grandchild exclusion from reassessment under Prop 13. Then you could form the LLC and transfer interests into the LLC. There are highly technical steps to go through at that point so please contact a specialist to guide you through this process.
Q: Hello - In California can the executor of an estate legally do whatever they want with the estate without consulting the other heirs? Is consulting the other heirs merely a courtesy? My oldest sister is executor of our mother's estate and trust. Our mother's house is in the trust and said sister wants to purchase it. She paid for an appraisal and has begun the paperwork for a loan in the amount of the appraisal. My other siblings and I found this out in an unrelated, casual conversation. Sister/executor never asked for our input or opinions on the sale price, which we asked her to do several weeks ago. Being the executor makes her both the seller and the buyer of the house. Is she legally within her rights? Apparently not even a signed sales contract is needed since she is selling the house to herself. It just doesn't seem right. Another sister has formally contested the appraisal in the hope that this will halt or at lease delay the sale temporarily. Thank you.
A: No, an executor may not make major decisions in the administration period without consulting the other beneficiaries. If there is a probate going on (court proceeding), then in order to sell the property, she, as executor, is required to serve a notice of proposed action on all the beneficiaries informing them of her proposed sale. If ANY one objects, then the only way the sale can be completed is if she gets judicial approval. If, though, the house is in the Trust, then she is not subject to the formal notice requirement, but as trustee of the trust, she is also not allowed to engage in "self-dealing" which is what she is doing by selling the house to herself. Now, if she is paying fair market value with appropriate interest and everyone agrees, then the sale could be finalized, but only with everyone on board. If there is no court proceeding going on, then you can always file a petition with the court to stop the sale.
