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Elderlaw: 04/01/2016

Elder Law

Dear Len & Rosie,

My friendís parents have recently moved into assisted living. Their vehicle is their last source of independence. The husband is 89 and suffers severe glaucoma. He has decided it is so bad that he will have his wife, who is 88, do the driving. She suffers from Alzheimerís Disease and has not had a license for over two years. This is obviously a terribly dangerous situation. Family members have spoken with the two. The father is extremely stubborn and says the arrangement is just fine.


Dear Jean,

The problem your friendís parents face is a problem that all of us will have to face some day, simply because we live in California. Getting around here isnít so easy if you canít drive or rely on someone else to drive for you. Consider the situation of your friendís father. Up to now he has enjoyed the absolute freedom to go wherever he wants, whenever he wants. When he and his wife can no longer drive, his world becomes a lot smaller. Heíll be limited to the places the shuttle bus owned by his assisted living facility will take him, or heíll have to be driven around like a child by his own children, if theyíre not too busy that day.

Obviously his well thought out plan of letting his wife drive him around isnít fine. If she is caught driving without a license, the police officer who catches her has the discretion to have the vehicle towed and impounded for an entire month. Impound yard nightly rates rival those of most motels. He shouldnít be driving either if his vision isnít correctable to 20/20. And we shouldnít discount the tragedy that could take place if either of them cause a collision.

If the wife suffers from early Alzheimerís and is capable of passing a driving test, she could get a valid driverís license, but given her condition itís a temporary solution at best and itís probably not a good idea to put her behind the wheel to begin with. If somehow she manages to get a license, or if the husband drives anyway because his license is nominally valid, then itís time to contact the Department of Motor Vehicles. Your friend can pick up the DMV ďRequest for Driver ReexaminationĒ (Form DS 699) at a local DMV office. Itís also easy to find on the Internet. Just search for ďDS 699Ē and it comes up at the top of the search results.

Incidentally, anyone may use Form DS 699 to alert the DMV about any potentially unsafe driver. You donít have to be related. You can even ask the DMV to keep your name confidential, although the DMV cannot guarantee this, especially if the person you turn in fights the DMV and subpoenas their paperwork.

If the husband insists on letting his unlicensed and ill wife drive, then bite the bullet and call the police. They might be able to talk sense into him. Or consider this: She canít drive a car if the spark plugs are disconnected.

Len & Rosie

Dear Len & Rosie,

What are the steps in selling my deceased motherís home, which was in her trust? I am the successor trustee. The trust directs that the home be sold and the proceeds are to be split equally among myself and my two sisters.

Is the home sold directly from the trust? Do real estate agents know how to do this? When the home is sold, does the escrow company make the distributions to the three of us separately? What, if anything, should the three of us report to the IRS on our individual income taxes?

Dear Barbara,

Welcome to Trust Administration. Itís a lot faster than probate, and itís much less expensive too, but itís just as complicated. What you really need to do is to hire an attorney to represent you as trustee.

The first step involved is to get you on the title to the home. This involves recording an Affidavit of Death of Trustee with the County Recorder, together with your motherís death certificate. Property Tax forms also have to be submitted to the County Assessor to ensure that the home wonít be reassessed until its eventual sale.

Once you are on title, you can hire a realtor, list the property for sale, and sell it. When the property sells, the proceeds of sale should be electronically deposited into an account in your name as trustee of your motherís trust, under a taxpayer identification number (EIN) obtained from the IRS. Other trust assets would also be consolidated into trust accounts in your name as trustee.

After the sale, you can propose a distribution to your sisters. If they are cooperative, theyíll waive an accounting, saving the trust from having to pay a bookkeeper to prepare one. After the accounting is either waived or approved by the beneficiaries or the court, you can then make a distribution equally to all three of you, while maintaining a reserve for taxes, fees and costs, and unanticipated expenses. As a general rule, once you give money to your sisters, you arenít getting it back, so keep a sufficient reserve to cover your costs.

Your mother may require a final income tax return for the year of her death. In addition, the trust will have to file an income tax return, if only because of the sale of the home. There isnít likely to be much in the way of taxes due, however, as the home should receive a cost basis adjustment as a result of your motherís death. In the following year, after you have completed the tax returns, you can distribute the remaining funds in equal shares.

Thatís it in an nutshell. There are a number of other issues to deal with, including trustee fees, IRAís, life insurance, potential Medi-Cal estate claims, transferring your motherís automobile, etc. Thatís why we recommend you hire an attorney to represent you in this process, because itís easy to make mistakes that can cost money and make things more difficult for you and your sisters.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.

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