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Trusts & Estates Law/Affidavit of Death of Trustee with 3 beneficiaries

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QUESTION: Hello,
My sister and I and sister in law are the successors to my Mom's estate.  We decided to keep her townhouse in Ca.  I called the assessors office to find what papers we need to file & my question is if all 3 of us are to be named as successors, do we fill out and notarize 3 separate affidavits?  My sister is the executor and lives in Ca and as you know taking care of all her financial issues involving the trust can be quite daunting.  
We are planning on renting her house and are trying to figure it all out,
Thank you for your help,
Linda

ANSWER: Thank you for letting me know that this is a California matter.  If the house was in a trust, then the first step is for the successor trustee (NOT the executor) to file an affidavit of trustee.  Then the trustee can transfer the property to the beneficiaries (the 3 of you, if I understand correctly).  The 3 of you will need to sign the Parent-Child Exclusion form ("Proposition 58 form") to keep the same property taxes that your mother paid.  Please note that there are important property tax considerations involved - if one of you ever decides to buy one of the others out, there will be a property tax reassessment (it will no longer be a "parent-child" transfer).

If you need assistance with this, I'd be delighted to help.

---------- FOLLOW-UP ----------

QUESTION: Thank you for your help, I have one more question, forgive me for not understanding the 'legalities' of all this.  The affidavit of death of trustee form needs one of us to be the successor trustee; you said it cannot be the executor, which is my sister, so it would be myself since I am her only other living blood relative?  I dont understand who the successor trustee would be, we did not have one named in her trust.  We want all 3 of us named equally as owners or beneficiaries of the house.
I really appreciate your help,
Thank you!

Answer
Maybe I misunderstood your initial question.  I made the assumption that your mother had a trust and that there was a person who was named as the "successor trustee" in the trust document.

So the first question I should have asked is "what document makes you, your sister, and your sister-in-law the successors to your mother's estate?"

If your mother had a trust and the condo is "titled" in the name of the trust, then the person who is named as the trustee is the one to fill out all of the paperwork with the county recorder's office (that person would first need to file an "Affidavit of Death of Trustee" and then execute a deed signing the property over to the people named as beneficiaries in the trust).

If your mother did not have a trust and the estate is worth more than $150,000 then it will need to go through the Probate Court to be put into your names....

If there was a Will that says that the 3 of you are the ones to inherit her estate and the estate is worth more than $150K, then you need to initiate a probate proceeding with the probate court in the county where your mother lived.

If there was no Will (and the condo is not titled in the name of a trust), then you will still need to initiate a probate proceeding - but in that case it's doubtful that your sister-in-law would inherit anything (normally without a will, assets pass "blood-to-blood").

Even if there is a Will that says your sister is the Executor, legally she is only NOMINATED to be the executor - she must be appointed officially by the probate court Judge to have any right to transfer any assets.

If your mother had a trust and the property was titled in the name of the trust but no one was listed as the "successor trustee" in the trust document, then one (or all) of you will need to initiate a proceeding in the probate court to have someone (one or all of you) named as the "successor trustee".

If your mother had a trust but the property wasn't titled in the name of the trust, then you will need to initiate a proceeding in the probate court to have the Judge declare that the property belongs to the trust (this is commonly called a "Heggstad Petition").

If you want assistance, my office can help you with all of this.

Regards,
Janet
(650) 325-8276
www dot calprobate dot com

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Janet Brewer

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BE CAREFUL about taking legal advice from non-lawyers.

I am a licensed attorney in California. I am available to answer questions about probating estates, preparing wills and trusts, administering estates and trusts, forming family limited partnerships and limited liability companies, and establishing a wide variety of estate and gift tax-sensitive trusts (charitable trusts, children's trusts, irrevocable life insurance trusts, etc.).

I can also answer questions regarding the preparation of estate tax returns (Form 706) in taxable estates. Please note that I do not prepare trust income tax returns and cannot provide you with any information about that type of return.

Please note: I am only able to practice law in the State of California. I cannot answer specific questions about other states' laws; I can only provide some "general" information that may or may not apply to your situation.

Experience

I have practiced California estate, gift-planning, and probate law exclusively since 1991. I am certified as a specialist in estate planning and probate law by the California State Bar Board of Legal Specialization (there are less than 125 such specialists practicing in Santa Clara County and fewer than 7,000 practicing in California - out of over 170,000 lawyers statewide).

I have served as an Instructor in the CFP (certificate in financial planning) program at University of California Santa Cruz, teaching the estate planning segment.

Organizations
Silicon Valley Bar Association
Wealth Counsel
Wealth Advisors' Forum
Executive Committee Member, Solo and Small Firm Section of the California State Bar (appointed to a 3 year term by the California State Bar Board of Governors)

Education/Credentials
I received my law degree (J.D.) from University of Denver Law School in 1975. I was admitted to the Colorado Bar in 1975 and to the California Bar in 1977 (NOTE: although I am a member of the Colorado Bar, I am on INACTIVE status there). I earned an M.B.A. in 1982, and I earned a Masters Degree in Taxation Law (LLM) at Golden Gate University Law School in 2010 (with honors).

More at:
http://www.calprobate.com

Awards and Honors
2007, 2008, 2009, 2010, 2011, & 2012 - chosen as a "SuperLawyer" - one of the top 5% of Northern California lawyers practicing in the estate planning and probate area (www.superlawyers.com). Avvo Rating of 10.0/10.0

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