Bank of America mortgage trust certification form

For some time now I have advised clients to contact their mortgage holder to see about linking their trust to their mortgage. Without that you can leave your trustee with a problem. The house might be owned by the trust but the mortgage is not connected to the trust. When that happens the trustee can have a very difficult (if not impossible) time getting information about the mortgage.  This is a great service that Bank of America is offering and I encourage you to see if your mortgage bank has similar.  The only downside is that they are charging $100 to process the form. Here’s that form:

Borrower Trust Information and Certification Form
Borrower:
Loan #:
Property Address:
Name of Trust:
Date of Trust:
Grantor:
Beneficiaries during Grantor’s Lifetime:
Term of Trust:
Occupants of above property:

l/We, Borrower (s) _________________ certify that the Trust is an inter vivos Trust, and that l/VVe will not alienate or transfer my/our interest in the trust. l/We will remain the beneficiaries of the Trust, and retain all beneficial interest in the trust, at all times during the term of the Loan identified above.  l/We certify that the property will continue to be occupied by me/us as my/our primary residence at all times during the term of the Loan.
By SIGNING BELOW, l/We hereby certify and acknowledge that the foregoing information is true and correct.

____________________

Signature

County of

State of

On _________________ before me, ______________ a notary public of the State of , personally appeared __________________known to me to be the person(s) whose name(s) is(are) subscribed to the within instrument, and acknowledged that he/she/they executed the same.
WITNESS my hand and official seal

Notary public in and for said State
This communication is from Bank of America, N.A., the servicer of your home loan.
TrustInfoCert 6594 09/1 3/2006

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Dying on your terms and POLST

My grandma is 98 years old…. or should I say 98 years YOUNG!?  She called last week to tell me about a great article in the LA Times.  It’s about dying on YOUR TERMS. In fact, the headline in the paper was “Dying on your Own Terms” and the headline online is “How to Help Ensure you Die on your Own Terms.”  You get the point though. Here’s a link to that article.  LINK.

Though very healthy at 98 she is a realist. She’s 98 for gosh sakes! Stuff happens and she is aware of it. She has been saying for 20 years that all her friends are dying. So, at her request, I am sending her a few extra copies of the article to share around her care home.

Also, at her request, I am sending the latest POLST form. The POLST form or “pink sheet” is a document for you to go over with your physician. It’s not for the lawyer.  However, I will provide you a link. The state has a bunch of great information on the POLST form. Here’s a link to the page. LINK.

The key with all of this type of stuff is to talk to your loved ones and talk to your doctors. Do not assume and do not ignore. TALK it out!

Best of luck to you and your loved ones.

-John

Robin Williams estate in the news

I was reading this article about Robin Williams’ estate. It is written by a Minnesota lawyer.  I am not saying the story is “wrong” but it is a little misleading. Now that makes for better reading than a 100% accurate story of course. In this story they make a big deal about the high cost of probate in California. Yes, it is high. However, let’s look at the story:

1) It mentions a trust that Robin Williams’ allegedly had. It was called The Domus Dulcis Domus Holding Trust according to the story.  If he had a trust and if the properties were in the trust then there would be no probate for these assets… unless someone brought a trust contest of some variety.  In fact, you can Google that trust name and you will find hits for properties where Robin M. Williams was involved in the transaction. Thus, I think it’s fair to assume he really did have a trust!

2) The story talks about the high costs of probate. However, if Robin’s wife is to inherit, even if no trust, she could do a spousal property petition. This would be significantly cheaper than a full probate as there is no probate code fee schedule as there is for full probates.

It’s just examples but, to me, it changes the complexion of the story. To me the story could be written, “It appears Robin Williams had a trust and will thus avoid the high costs of California probate.” Not as sexy but, if it’s true, it would be a heck of a lot simpler.

By the way, totally off topic, but this appears to be Robin’s house (or one of his houses) and includes pictures. Wow, nice digs!

California Insurance Code Section 10113.71 Form

Have you gotten forms from your life insurance companies giving you the option of providing them an alternate person to receive your lapse notices? I love this! It all stems from California Assembly Bill 1747 which became effective January 1, 2013. It was written into law as California Insurance Code section 10113.71. I think it’s a very helpful law. It provides for a 60 day lapse period on policies issued after January 1, 2013. Plus the insurance company must provide notice of the lapse to everybody including your designated person. To me this makes very good sense. With people moving around so much providing the insurance the address of the most stable friend or relative you know can’t hurt. If your insurance company hasn’t contacted you with a form to fill out I encourage you to contact them to ask them for their form. If you use your favorite search engine to search for your your life insurance company and words such as, California notice and designation for secondary addressee form, you should find it.  Good luck.  -John

 

Ask your parents some tough questions to help everybody

Back in 2012 I posted a blog about talking to your parents about their estate plan. I called it “5 Questions to ask YOUR parents about their estate plan.”  I encourage you to read it before reading on….

The key here is that it’s a sensitive thing and, often, when dealing with your parents it can be tough. Heck, they are your elders, your respect them, you don’t want to look like a gold-digger. The 5 questions I posted back in 2012 are:

1) What estate planning documents do you have in place?

2) Can I have a copy of your trust?

3) Who are the financial decision makers in your estate plan?

4) At what age are the assets distributed to the kids?

5) Are all of your assets actually titled in the trust?

Let’s ask five MORE questions. That is, here are 5 more questions to help you help them help you!

1) So, the first question can be asked another way which is “have you done any estate planning?” or “What estate planning have you done?” The key is getting the conversation started. I think this is a good way to break the ice.

2) Do you have health care documents in place and do they have the latest HIPPA language?  Ya, I talk about financial stuff a lot on my blog but don’t forget the medical. Hippa can be a killa’ so make sure your parent’s documents are current!

3) Do you have long term care insurance or other protections in place? In case you didn’t hear the rumor long term care can break the bank! Good insurance can protect them… which ends up protecting you.

4) How is stuff set up for my spouse and/or children?  I like to look at estate planning as a multi-generational, or communal, thing. What your parents do affects you and what you do affects your spouse and kids. Plan it all together!

5) How about I pay for it? Let’s face facts. A lot of elderly people, especially depression (or near depression) era people are a little tight with their money. There is nothing wrong with that but sometimes you have to spend money to make money. Get their estate planning done! You’ll save yourself money in the long run!

Ask these five, and my previous 5, or some combination thereof and you should get the family conversation started… or be uninvited to Thanksgiving dinner and disinherited. (Just kidding)

-John

 

Notifying the California Department of Health Services of a death

How does one go about notifying the California Department of Health Care Services (aka: “Medi-Cal”) of the death of a friend or loved one? You can have an attorney help you or just go to this handy link on their website.

Once there click on NOTICE OF DEATH.

Another screen is brought up where you put in a whole host of information about you, the decedent, their assets, etc….  Just fill it all in, honestly of course, and then wait for Medi-Cal to get back to you.

Don’t forget Medi-Cal generally will take a back seat to other costs of administration in a probate. So a large Medi-Cal bill does not mean you should just walk away from a piece of real estate. We can often get our client’s MONEY IN THEIR POCKET. Medi-Cal just wants the house sold and are ok to get paid after probate. The key is talking to an experienced probate attorney.

If you want to talk about Medi-Cal claims, probate, or any related subjects please contact us.  -John

 

Special Letters of Administration and Mortgage Companies

“My husband died and the mortgage company won’t talk to me.”

This is becoming a common statement that I hear. Mortgages and the actual deed to real estate are NOT connected. They are separate.  So, for example, if a spouse dies with a house in their name the other spouse can often use a “spousal property petition” to transfer assets to themselves without going through a full probate. However, the mortgage, or encumbrance against the property, does not transfer with the “deed” or title.

What?

Say it isn’t so Mr. California Probate Lawyer!

It’s true.

Plus, mortgage companies are making it more and more difficult to communicate with them after death. Sure I have known of people who have pretended to be the decedent and that can last for years but eventually that will stop working. Plus it’s not legally correct to do that!

I recently encountered an interesting situation. Mom and son were thoughtful enough to prepare a deed, before mom died, to transfer her home to her son.

Now, since you read my blog you know this might have negative tax ramifications after death but, putting that aside, it avoided probate so in general it’s fine. However, the mortgage company really doesn’t care about the deed transfer. They do not care because the deed transfer is completely separate from the underlying mortgage. The client wants to talk to the mortgage company about a loan modification.  The mortgage company won’t talk to him since mom is dead. This is truly a problem.

What can be done?

Rightfully so the client wants to avoid a full probate. I do believe a full probate can be avoided. The answer is Letters of Special Administration.

Letters of Special Administration is basically a limited probate. It’s limited to whatever is specified in the petition. The more limited it is the more likely the court will approve it. We thus may ask for limited powers to communicate with XYZ Mortgage Company regarding loan 1234. Or maybe we will ask for general powers related to real estate.

See California probate code 8544 below:

8544. (a) Except to the extent the order appointing a special
administrator prescribes terms, the special administrator has the
power to do all of the following without further order of the court:
(1) Take possession of all of the real and personal property of
the estate of the decedent and preserve it from damage, waste, and
injury.
(2) Collect all claims, rents, and other income belonging to the
estate.
(3) Commence and maintain or defend suits and other legal
proceedings.
(4) Sell perishable property.
(b) Except to the extent the order prescribes terms, the special
administrator has the power to do all of the following on order of
the court:
(1) Borrow money, or lease, mortgage, or execute a deed of trust
on real property, in the same manner as an administrator.
(2) Pay the interest due or all or any part of an obligation
secured by a mortgage, lien, or deed of trust on property in the
estate, where there is danger that the holder of the security may
enforce or foreclose on the obligation and the property exceeds in
value the amount of the obligation. This power may be ordered only on
petition of the special administrator or any interested person, with
any notice that the court deems proper, and shall remain in effect
until appointment of a successor personal representative. The order
may also direct that interest not yet accrued be paid as it becomes
due, and the order shall remain in effect and cover the future
interest unless and until for good cause set aside or modified by the
court in the same manner as for the original order.
(3) Exercise other powers that are conferred by order of the
court.
(c) Except where the powers, duties, and obligations of a general
personal representative are granted under Section 8545, the special
administrator is not a proper party to an action on a claim against
the decedent.
(d) A special administrator appointed to perform a particular act
has no duty to take any other action to protect the estate.

The highlighted portion above is key as it should allow the Special Administrator to deal with the mortgage company and figure out a plan for the mortgage.

Fees in special administration cases are by agreement of the parties. The typical statutory probate fee schedule does not apply. I generally offer these on a flat fee basis to give the client’s the most certainty and avoid surprises.

I should add that special letters can be used in many other situations such as accessing bank accounts to pay mortgages and funeral expenses, investigate safe deposit boxes, and more. The key is getting the court order so it’s all legal!

-John

Could Donald Sterling use a blind trust?

Donald Sterling has a pretty large net worth.  I don’t know if it’s $2 billion or $3 billion or what exactly it is.  I think most of us estate planning attorneys would call him “high net worth.”  I certainly don’t have any billionaire clients at this time.  Anyway, he is probably busily working with a team of estate planning attorneys to figure out how he can retain control of the LA Clippers in light of his recent racist rampage that has gone public and gone viral!

When I think back to others who have gotten themselves into similar pickles I have thought of owners like Eddie Debartolo, of the 49ers, and Jimmy Haslam, of the Cleveland Browns. It is believed that both men utilized “blind trusts” so as to retain ownership of their beloved teams even if they did lose day to day control.

I actually found a great definition of a blind trust on wiki. It reads:

“A blind trust is a trust in which the fiduciaries, namely the trustees or those who have been given power of attorney, have full discretion over the assets, and the trust beneficiaries have no knowledge of the holdings of the trust and no right to intervene in their handling. Blind trusts are generally used when a settlor (sometimes called a trustor or donor) wishes to keep the beneficiary unaware of the specific assets in the trust, such as to avoid conflict of interest between the beneficiary and the investments. Politicians or others in sensitive positions often place their personal assets (including investment income) into blind trusts, to avoid public scrutiny and accusations of conflicts of interest when they direct government funds to the private sector. A blind trust is often used with those who have come across a fortune within a short period of time (e.g. an inheritance, or a multimillion lottery) in order to keep their identity anonymous to the public.”

The above sums it up pretty well.  Donald Sterling could select someone (it’s best for it not to be spouse, parents, children and certain other related or controlled parties) he highly trusts to be the trustee and that person would make all the decisions over trust assets.  For example, if it were me I would select a non-relative but perhaps someone he trusts more than a relative. Maybe he has a good friend (hard to believe of course) that he has been friends with since 1st grade.  Someone like that could serve as trustee and, while  technically independent, would probably do exactly what Donald Sterling asks him to do.

Other options to serve as trustee would be an accountant, an attorney or even a private professional fiduciary. However, I think the old friend would be best. Or possibly one of the immediate above as the trustee but then select the old friend as a co-trustee or “distribution” trustee who would need to be consulted in certain specific situations!? I am just giving ideas. Of course, there are other options to consider.

The key to the blind trust is that the NBA has to see, and believe, that Donald Sterling has absolutely no control over the team. However, even that might not be enough based on his racial blast, his follow up to the rant, and his history of troubles before this year!

Possibly by doing the blind trust set up the NBA wouldn’t mandate a sale next week!?  I guess we shall see….

-John

Finish your parent’s probate and then….

Probate can be a long and drawn out process. These days it’s eight months and often longer.  Many probates drag on for a year or more. So when you finish your parent’s probate what should you  be thinking?

It seems to me that’s a great reminder that YOU need a living trust of your own!

You don’t want your kids or loved ones going through probate at your death, right?

You don’t have to wait for probate to be done but that seems as good a time as any.

Here’s the dirty little secret of probate and estate planning. Don’t tell anybody. Shhhhhh. Keep this between you and I….  you will die some day.

Plan ahead and get your revocable trust done and done right!

 

The Dangers of Do-it-Yourself Wills

I often tell people that it MIGHT work out fine if they do their own will. Of course it might not. I like to tell people that we’ll find out after they die!

Well, a recent Florida case emphasizes this sentiment.  The Supreme Court of Florida recently heard the case of James Michael Aldrich v. Laurie Basile, et al. (No. SC11-2147).  In this case the decedent used an “E-Z Legal Form” will. She laid out every item with detail but failed to mention later acquired assets. She inherited a large sum after doing her E-Z Legal Form will and thus the will did not give away these assets. In fact, the laws of Florida gave those later acquired assets away to someone other than who she intended to give things to by her will.

In her concurring opinion in Aldrich v. Basile, Florida Supreme Court Justice Barbara Pariente wrote:

“While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer, this case does remind me of the old adage “penny-wise and pound-foolish.” Obviously, the cost of drafting a will through the use of a pre-printed form is likely substantially lower than the cost of hiring a knowledgeable lawyer. However, as illustrated by this case, the ultimate cost of utilizing such a form to draft one’s will has the potential to far surpass the cost of hiring a lawyer at the outset. In a case such as this, which involved a substantial sum of money, the time, effort, and expense of extensive litigation undertaken in order to prove a testator’s true intent after the testator’s death can necessitate the expenditure of much more substantial amounts in attorney’s fees than was avoided during the testator’s life by the use of a pre-printed form.”

I am just a mere estate planning attorney so who am I to talk about things like “penny-wise and pound-foolish?”  However, the above quote is a Justice of the Florida Supreme Court. Hopefully her words mean something to you if you are thinking of doing your own will!

Florida, California, or anywhere in between hire an attorney to do your will!

Good luck whatever you decide!  -John