Do I need a probate attorney?

12/31/2009 02:14 PM

Question: My mother needed money and pawned my grandmother's ring. After several months, she passed away. My brother and I have continued to pay the pawn shop for the ring. I want to get it out of the shop because of sentimental value, but the pawn shop wants me to get a "power of attorney" before they will release the ring to me. How can I proceed to get the ring out of the shop now that my mother is gone? We never went through probate because my mother had very little money or possessions.

Answer: California has a summary probate declaration for assets less than $100,000. A proper declaration pursuant to Probate Code Section 13100 would be a place to start. Technically, the pawn shop should accept it, but often they do not. That is where you might need counsel to explain the situation to the pawn shop.

What are the life insurance beneficiary laws in CA?

12/31/2009 02:13 PM

Question: My brother, who died recently, changed his beneficiary about 6 months ago on his life insurance to our mother. He took his wife off of it. I've since been hearing that in the state of CA your not allowed to do this without first getting the written approval of the spouse. This, because CA is a community property state. My question then is, my mother doing something illegal by getting the money? Can his wife come back and fight her for it??

Answer: Depending upon how the life insurance was paid for may effect the ownership rights on the policy. Frankly, this is an area that is very fact specific, so spending a little time with an attorney to review the facts will give you a clearer answer to your question.

Living trusts: Is a will required with a living trust?

12/31/2009 02:12 PM

Question: Living trusts: Is a will required with a living trust?

Answer: While having a will with a living trust is not strictly required, it is strongly suggested. The will is necessary to transfer any assets into the trust in the event an asset is not properly titled in the name of the trust at the time of death. If an asset is not in the name of the trust at the time of death, and there is no will, then the asset will pass according to the law of intestate succession as established by law - which may not be the same as the terms of the trust. That is why a qualified attorney will include a will with the trust as part of your total estate plan.