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I Am The Trustee Of A Trust in Santa Clara County. Do I Have To Go To Court?

Matt is the trustee of his father’s trust in Santa Clara County.  His father has recently passed away and he has a document and does not know what to do next.  His two siblings have lots of ideas and thoughts about what Matt can and cannot do.  While Matt is appreciative of their advice, he has ideas his own ideas about what he should do.  He has looked over the trust and understands how his father wanted things to be distributed.  He is unsure of the process and does not want to get into trouble. Does he need to file anything with the court or go to court?

One of the advantages of a California trust administration is it is much quicker when compared a probate administration of a will.  Another advantage is the trust remains private as it not mandatory it is filed with the superior court or the county recorder’s office.  The trust is only filed with the superior court if the trustee or one of the parties file a petition to bring a trust...

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Is Going to Court Really Necessary? I Don't Want To Go.

For Melissa, it has been three years since her mother passed away.  Her mother's trust left everything equally between her two daughters: Melissa and Sarah.  The main asset of the trust is a house in San Jose, California.  Just prior to their mother passing away, Sarah moved into the house to help her mother.  Melissa was grateful Sarah was able to live with their mother and help her during her final days.  Now, three years later Sarah has remained in the house, is unwilling to move out and refuses to either sell the house or buy out Melissa's interest in the house.  Sarah was named as the trustee of their mother's trust and has refused to sale the home so the proceeds can be split equally between Melissa and Sarah.  This has caused a deep rift in their relationship.  Melissa wants to receive her share of the trust as her mother intended and Sarah is refusing to let this happen.

Melissa was near tears as she sat in the office explaining the...

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My Husband Died Without A Will And His Name Is Still On Title To Our House. Do I Need To Open A Probate?

The answer may be "no."  When I consult with a surviving spouse, I always consider a spousal petition.  It does not work in every situation. When a spousal petition can be utilized, it can be the most economic and effective way to transfer property to the surviving spouse.  

California Probate Code 13500 allows for property transferring to the surviving spouse without a probate administration.  This section allows for property to be transferred with or without a will where no administration is necessary.  If an asset is only in the decedent's name or titled in community property, then a spousal petition under Probate Code Section 13650 can be used to transfer the property to the surviving spouse.

The petition consists of:

  • Allege assets pass to the surviving spouse;
  • Describe the assets passing to the surviving spouse;
  • Describe why the property is community property;
  • Describe the facts should pass to the surviving spouse;
  • Names, relationships and...
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If I Did Not Do Anything Wrong Can I Be Sued?

A client sat across the table from me.  As he wrung his hands, he told me he had been sued by his brother.  My client was the executor of his mother's will.  He had not done anything wrong but his brother had sued him.  His brother alleged he breached his duty by accepting a creditor's claim. We reviewed claim and it was a proper claim to be accepted by the executor.  He just looked so defeated and could not understand how he can be sued if he had not done anything wrong.

Anyone with a court filing fee (or qualifying for a fee waiver) can file anything with the Court.  The Court does not make any determination about the merits of a case when it is filed.  I can file a suit alleging you stole my hippo.  I do not have to prove I had a hippo, you were seen around my hippo or what happened to the hippo when the case is filed.  Eventually I will have to prove my case and that is called a trial.  The jury or judge will hear all the...

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What Do I Need To Know If I Go To Pobate Court In Santa Clara County?

If you are attending Probate Court in Santa Clara County, the courthouse is located at 191 North First Street in San Jose.  Parking can be difficult so allow plenty of time for parking.  There is a public parking garage near the courthouse if you are unable to find street parking.  If you are able to find street parking, it will be metered parking.  Once you make it to the court house, you will need to pass through security.  Take the elevator to the fourth floor.  The Probate Court is currently held in Department 12.  

On the wall opposite of the double doors to the courtroom is a bulletin board.  The day's calendar is hung on the bulletin board.  For each calendar session, there is a listing of the probate cases to be heard in that session.  On the sheet of paper hanging on the bulletin board for the 9:00 calendar, there will be a  listing of cases that includes the line number, time, case number, name of the case and the...

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My Siblings and I Cannot Agree. Who Has The Right to Control The Final Disposition of My Mother?

Family disputes occasionally arise over funeral arrangements.  This may be due to family disharmony, religious, monetary, or other reasons.  If a dispute arises over the final disposition, the best thing to do is see if the matter can be resolved by settlement.  

If the matter cannot be resolved through a settlement or agreement, California Health and Safety Code Section 7100(a) governs who is in charge.  The following people, in this order, have the right to control the decedent's remains:

  • An agent under the power of attorney for healthcare;
  • Decedent's competent spouse;
  • Decedent's competent children;
  • Decedent's surviving parents;
  • The surviving adult persons in the next degree of kinship; and
  • The public administrator when there are sufficient assets.

If you and your siblings cannot agree on what happens to your mother's body and your mother did not have written instructions (and there is no surviving spouse), the majority of her children are in agreement...

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The Trustee Of My Parents' Trust Will Not Distribute The Assets. What Can I Do?

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Dealing with a trustee who thinks they can do whatever they want is frustrating and unfair.  As a beneficiary, it is infuriating dealing with a trustee who is power hungry.  You likely feel powerless and helpless as the beneficiary.  The trustee may be telling you that he can do whatever he wants and threatening you if you question the trustee's actions.

It may feel like you do not have any power but the opposite is true.  The trustee should be administering the trust for the beneficiary's benefit.  If the trustee is doing his job properly or being adversarial to the beneficiaries, the court has the power to remove the trustee.  The trustee does have some discretion but that discretion is not absolute.  

When the beneficiary believes the trustee has engaged in misconduct, the beneficiary has the power to stop the trustee.  The beneficiary can petition to the court to compel the trustee to provide a formal accounting and to...

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Is A Trust And Will Administration The Same?

There can be a lot of confusion when someone passes away.  When people call me to tell me about the will or trust mom or dad has left behind, many times they do not know if they have a trust or a will.  Many individuals who I speak with use the terms trust and will, as well as trustee, executor and administrator, interchangeably.  Trusts and wills are different.  However, both are used to distribute assets after a loved one passes away.  

A major difference is the process.  A trust administration does not require court oversight unless someone such as a beneficiary requests it.  If there is a will and a trust, many times a probate is not required.  If there is only a will, probate is required.  If there are no estate documents, a probate is required.

The main point of an administration of a will or trust is the fiduciary identifies and secures the assets, pays the expenses and distributes the remainder of the assets to the beneficiaries....

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Who Pays For My Debts When I Pass Away?

While that seems like a simple question, the answer can be complex.  The answer depends upon how you have planned and your estate plan, will, trust, account beneficiary designations, etc.  There is simply  no one answer that answers this question for everyone.  It will also depend upon the type of debt, if there were co-signers for your debt and the type of assets and estate that you have upon your passing will determine who gets paid.  

Most debts will not attach to your primary residence other than mortgages, taxes, homeowners associations and builder liens.  However, the equity in the property may need to be used to pay your unsecured bills.  Generally speaking, your estate will be responsible for your debts up to the amount of the value of the estate.  This means if your bills are $1,000 and your assets are $600, your estate is only responsible for $600.  The remaining $400 will be written off.  Your heirs are not responsible for...

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What Is A Probate Admistration?

A probate administration is the court process to transfer the assets of a decedent to his or her heirs or beneficiaries.  The court oversees the transfer through a court supervised proceeding.  Before the assets are transferred, a court order authorizing the transfer is required.  

Whether or not a probate proceeding is required depends upon what documents, if any, your loved one had and the value of the estate.  If the estate plan only consisted of a will, a probate will need to be opened.  If no estate plan was done, a probate will need to be opened.  If there was a trust and a will, a probate is generally not required.

A simple test to determine whether you need a probate is do you need the decedent’s signature to transfer the assets.  For example, your mother had a home when she passed away and the home was held in her name individually.  In order to transfer the home, you need your mother’s signature.  A probate will be...

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