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CaliforniaLawyer

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  1. The probate lawyers represent your sister in her capacity as personal representative. She is also an heir, but she cannot give herself special treatment using her power as PR. Her job is essentially to manage the estate assets, pay debts, sell or maintain property, and then eventually distribute estate assets to heirs (and/or beneficiaries). Her lawyers do not represent you or any other heirs. They represent the interests of your father's estate. Your sister may not be fulfilling her obligations as PR, but in order to address the situation, you need to take action on your own or hire an attorney to represent you as an heir. You can try to have your sister removed as PR and replaced, or seek redress from the court regarding any actions your sister is taking that are not in line with her obligations as PR. Your situation is too complicated to fully address here, and I would recommend contacting a lawyer in your area. A lawyer may agree to monitor the probate for you for a fee, and/or bring legal action on your behalf, if necessary.
  2. Property is typically not held in joint tenancy AND in a trust, and this may not even be possible. One of the purposes of joint tenancy is for the property to pass to the remaining joint tenant(s) upon the death of one joint tenant. This avoids probate of that asset. If your father held his bank account as an individual joint tenant with you as the only other individual joint tenant, then the account should pass to you upon his death, and his will would not control it. In other words, the account would never pass to his estate, and then to a trust, and there would be no legal obligation to share the money. You should contact the bank to find out how title is held, and to let them know of your father's death. The bank can tell you how to transfer title to you. It sounds odd that your father held the account in joint tenancy, and then apparently tried to dispose of it through a will and/or trust. You may also want to contact an Ohio probate lawyer for additional help and advice with respect to your situation and regarding state-specific laws that might affect your rights.
  3. truthhumm said... my sister is the PR in my fathers estate. she has only lied to me about everything. this is in the state of calif. I contacted the lawyers asked for information and paper work regarding this estate that i am an heir to.. i was denied any information. Is this legal to deny an heir>? You have certain rights concerning your father's estate, but your question is not very specific regarding what your sister has lied to you about or what information you have requested. More information is needed to determine whether what is being done is legal or, more importantly, for someone to be able to advise you of your rights or legal remedies under the circumstances. You may want to contact a probate attorney in your area to advise and assist you regarding your specific circumstances. Erik Liggins www.ligginslawfirm.com
  4. This depends on the terms of the settlement. A settlement is usually governed by a settlement agreement, which is a contract. Does the agreement say there is no settlement until your brother signs? This issue should not ordinarily hold up your receipt of an inheritance, but if the inheritance is basically your share of settlement proceeds from a lawsuit, then it is quite possible that your brother's failure to sign could hold up the distribution of money. The defendant in the lawsuit probably does not want to pay the rest of the family a settlement amount if one family member is going to continue the lawsuit against them instead of settling. You should consult a lawyer to deal with your specific situation.
  5. You should contact a trust lawyer to find out how to properly revoke your trust. You may end up causing a great deal of confusion down the road if you simply draft a document and have it notarized. Also, since a trust is generally useless unless it is funded, you will want to make sure that you properly change title to any property that is already funded in the name of the trust. Courts have the power to create a "constructive" trust even if a written trust is not available, and if you try the do-it-yourself approach and do not carry out your wishes properly, it can end up having unintended consequences. In any event, in California there is usually no need to file any documents with the court to revoke a revocable living trust. Other jurisdictions may vary -- you may want to mention the state where the trust was prepared to get more specific advice.
  6. I am going to make some assumptions before responding to your question. By "executor," I assume you are referring to the trustee of the trust. I am also assuming that the settlor (or "trustor") who has Alzheimers was the original trustee, and the new trustee took over because of the trustor's health condition, meaning the Alzheimer's has rendered the trustor incompetent to act. The trustee likely has the power to manage trust property on behalf of the trust. Generally, this power is to be exercised for the best interests of the trustor so long as the trustor is alive. Since date of the trustor's death is unknown, the beneficiaries have no present or vested interest in the trust. The interest of the beneficiaries is only contingent, and does not become vested until the trustor dies and the trust becomes irrevocable. The trustee, therefore, most likely has the power (depending on the language of the trust) to buy or sell trust property AS TRUSTEE, but cannot, AS BENEFICIARY, buy out the interests of another beneficiary at a time when neither beneficiary owns the property in question. Nor can the trustee, even AS TRUSTEE, buy half of any property that is already wholly-owned by the trust. This is self-explanatory. An attempt by the trustee, who is also beneficiary, to engage in any transaction concerning trust property may also be a conflict of interest, particularly if it were being done primarily to benefit the trustee/beneficiary, and not the trustor. The proper way to handle this situation is for the trustee to leave the property in the trust, and manage it in a way that is in line with the language of the trust. Then, once the beneficiaries' interests in the property become vested, and before the trust property is distributed, one beneficiary can effectively "sell" their half-interest in the property to the other beneficiary, who is also serving as trustee. It is a good idea to have the property appraised at the time of sale so that a fair selling price is reached, and it is also generally a good idea for the beneficiary who is doing the selling to get legal representation so that they do not give up any rights that they don't intend to, and are not otherwise taken advantage of by the trustee or another beneficiary. If the sale is structured correctly, there should be little or no capital gains on the property, and thus no capital gains tax. This is because the cost basis for the property should become its date-of-death value, and an immediate sale would not allow the property to significantly appreciate or depreciate. Also, it may be possible to transfer the property without consideration and avoid any actual "sale," while still compensating the "selling" beneficiary with cash from the trust. Whether there will be any estate tax or other tax ramifications depends on, among other things, the value of the estate being distributed, how distributions from the trust are structured, the year the trust becomes irrevocable (i.e., when the trustor dies), and estate tax laws in place for that year. It is worth hiring a tax professional (along with the attorney), to walk you through any tax ramifications. If you are dealing with a lot of money, it is a good idea to spend a few thousand dollars to have professionals advise you of your legal rights and the tax implications of certain actions. It can easily cost you much more than the cost of their advice if things are handled incorrectly, particularly if you are dealing with real estate or other property that tends to be very valuable. Guest said... I am the beneficiary of half of some property in a living trust. The executor is the beneficiary to the other half. The executor also has complete power of attorney (the person whose living trust is in question is in the advanced stages of Alzheimers). I have been approached by the executor about selling my half of the property before the death of the person who owns the living trust. In other words, the executor wants to buy me out. Is this legal? If so, what are the tax ramifications?
  7. You have signed a contract. Your obligations are governed by the language in the contract. If all of the repairs are not made, there is a chance you will not be legally obligated to pay for the work. However, if some repairs are made, you may be obligated to pay for the portion of repairs made. It depends on the language in the agreement. If the language is not clear enough, you may find yourself back in court arguing with your landlord again about what is owed, what was repaired, or what you agreed upon in the first place. However, it is impossible to give you a concrete "yes or no" answer on the facts you've provided.
  8. It is possible. It may depend on the nature of the charges, when they were made, the marital property laws in your jurisdiction, and your husband's agreement with the credit card issuer. You should consult a probate attorney regarding the potential liabilities of you and your husband's estate. Keep in mind that if your husband died with property, his estate may have liabilities to creditors even if his suriving spouse does not. There are many variables that help determine what happens with property, debt, and other potential liabilities (e.g., final income taxes) after a person dies, which is why consulting a lawyer may be a good idea.
  9. I'm sorry to hear about your mother. You will have to take a common sense approach to finding the will. Your question highlights the importance of making sure the testator informs someone likely to survive them of where the will can be located upon their death. Also, original wills are often not kept with the attorney (at least not in CA; I don't know about MO). As a result, family members must check the deceased's files, safe, safe deposit box, desk drawers, closet, etc., etc., etc. to see if an original will exists and what it says. If I were you, I would start by calling the judge. You will probably speak to his clerk, but you should leave a message inquiring whether he kept original wills (or copies) for former clients, and what he did with them. If an original will cannot be located, a copy MAY be accepted by the court, but you will want to consult a probate lawyer in your jurisdiction before moving forward on trying to submit a copy for probate. Guest said... My mother has just passed away and I believe she had a will. How do I locate that in Missouri? The attorney who helped with it was kent krowe who became a judge in st louis county how would I find out who took over his will's?
  10. Theoretically, an officer can cite you if he observes you commit an offense and does not have a chance to pull you over. And since pulling you over is generally not for the purpose of giving you a chance to talk your way out of a citation or arrest, legally it doesn't really make a big difference whether you were issued the citation in person or via mail. In any event, now that you have the ticket, you need to go to court to assert any defenses you have, so even if, for the sake of argument, the ticket were not issued properly, the effect of receiving the ticket is pretty much the same as if the officer pulled you over. If you are innocent, you can fight the ticket and present your defenses, including the evidence that you were not pulled over at the time the incident occurred. If you are not innocent, you can plead guilty and pay the fine or go to traffic school if you are eligible...or assert defenses anyway, in the hope of "beating the rap." You can, and probably should, call a criminal defense attorney if you want more specific information regarding your situation, particularly since reckless driving may very well be considered a misdemeanor criminal offense, as opposed to a mere traffic infraction.
  11. The Oklahoma rule against perpetuities limits the duration of the trust to 21 years following the death of a life in being at the creation of the trust. You probably want to speak with a trust attorney to find out exactly what needs to happen in your situation. You want to make sure that the correct measuring lives are used to determine when the trust should terminate, and find out how the trust property should be handled. See the relevant statute below: http://www.oscn.net/applications/OCISWeb/DeliverDocument.asp?CiteID=436789 Guest said... Is there a law in Oklahoma that disallows perpetuating Trusts, and if so, for how many generations? My grandfather created a legal document like a 20 year Trust in 1937 that comes up for renewal in 2009. His "great grandchildren" are receiving proceeds from oil and gas royalties. As a Trustee I am under the impression that this Trust should NOT continue and that the leases should now be sold and distributed. Am I thinking correctly about this. I live in Oklahoma.
  12. You should call a probate attorney in your state. You may have homestead protections that will keep you from having to sell the house. Also, if your children inherited a portion of the house, you may be able to find another solution besides selling, such as using equity to buy them out. You need someone to verify your rights in this matter given your state's law and your particular situation. Many probate lawyers will be familiar with these situations.
  13. More facts regarding your situation would help us answer your question. Was the property abandoned? Was it held against the owner's will? Did the owner grant permission for the other person to hold the property? If you describe the actual facts regarding what happened, we may be able to provide an answer.
  14. The requirements for a valid will vary by state. In California, for instance, wills do not need to be (and should not be) notarized. Instead, they require the signatures of two competent witnesses. An exception applies if the will is holographic (hand-written).
  15. You're better off focusing on the facts of what they claim than what they call it. The judge's job is to apply the correct law. I have never heard of "unlawful endangerment" as a cause of action, but if the counter-claim alleges some negligent or intentional conduct that resulted in injury to a person or property, there is probably a tort cause of action that fits. It doesn't really matter what it is called, especially in small claims court.
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