Handling Purchases of a home for an SSI beneficiary

There are SSI penalties for purchases of a home for an SSI beneficiary:

Effect on SSI on SNT Outright Home Purchase;

FROM the SNT Symposium 2019:

“If purchased outright by the beneficiary as his principal resifence, then there is a 1/3 penalty in the month of purchase (loss of $277/month of SSI in 2019)
No effect on benefits as long as principal residence
• 20 CFR §§416.1210(a), 416.1212

If purchased by the SNT: No effect on benefits as SNT is exempt
SSA considers beneficiary to have “equitable ownership under a trust”
• SI 01120.200(F)(1),
1/3 ISM reduction ONLY in month of purchase
Beneficiary can live rent free without reduction or penalty, SI 01120.200(F)(2)”

How does Special Needs Planning Help In Your Trust?

SPECIAL NEEDS TRUST PLANNING ATTORNEY LOS ANGELES COUNTY

CREATING A SPECIAL NEEDS TRUST & ESTATE PLANNING IN GLENDALE AND LOS ANGELES COUNTY


As special needs trust planning attorneys in Glendale Ca, we gear our planning with one goal in mind:  Making available, or maintaining public benefits for the disabled person.  At times, a person has inherited an asset which would disqualify him from Medi-Cal. The benefit of our Special Needs Planning is to build strategies that allows the receipient of the inheritance to keep both the inheritance and Medi-Cal.

Common situations:

  1. Inheritance already received;
  2. Inheritance about to be received;
  3. Inheritance likely in the future.
  4. Litigation proceeds for a person on Medi-Cal.
  5. Parents building a trust and estate for the benefit of a disabled child.

When leaving an inheritance to a special needs child, much attention should be given to the selection of the trustee and the special needs language as well as the expected cost of living of the child. California Special Needs Lawyers can address each special needs issue specifically and individually.

A Special Needs Trust is a supplemental needs trust created by an attorney to manage inheritances, litigation proceeds, and other resources of a special needs or disabled person while maintaining the child’s or disabled adult’s eligibility for the much desired public assistance benefits.

WHO CAN CREATE A SPECIAL NEEDS TRUST?

Generally, parents, grandparents or others may fund a third party special needs trust the with resources which they deem appropriate for the trust with some limitations.  The Special Needs trust assets are managed by a trustee for the benefit of the child or adult with the disability.   On the other hand, first party special needs trusts are a court created instrument, with the assets of the disabled beneficiary, such as litigation proceeds.  First Party Special Needs Trusts require a court order.

Government agencies generally honor special needs trusts, but many agencies have imposed stringent rules and regulations upon them. This is why it is of most importance that you, as parents consult an experienced attorney regarding current government benefit programs.

THREE TYPES OF SPECIAL NEEDS TRUSTS: 

There are generally three types of Special Needs Trusts.

Third Party Special Needs Trust: This type of trust is created by a parent, grandparent or other persons for the benefit of the disabled person.  In this type of trust, the parent or grandparent is the grantor.  The assets which go into this type of trust come from a third party other than the disabled person.

First Party Special Needs Trust:  This type of trust is created for benefit of the disabled individual, often with a court order, and contains repayment provisions for Medi-Cal.   This type of trust can be created by a Conservator/Guardian/ Parent or Grandparent.  This type of trust is generally used for litigation proceeds and sometimes for inheritances which were distributed to the disabled person by error.  This type of trust is created in a Minor’s Compromise or Disabled Person’s Compromise proceeding.

a)    Litigation and Structured Settlement Special Needs Trusts.

b)    Litigation Proceeds Special Needs Trusts.

c) Inheritance of a competent but disabled person.

Pooled Trusts: A pooled trust is usually administered by a corporate fiduciary and is used in specific situations where the Medi-Cal or SSI beneficiary is 65 years old and over, or on where appropriate when the beneficiary will be receiving settlement proceeds.   This type of trust has a corporate trustee.

Much care must be given to the language of the trust to prevent the loss of the needed services and assistance.

The disabled person is the beneficiary of the trust. The trust is discretionary and the trustee has absolute discretion to determine when and how much the disabled individual should receive. The disabled individual cannot be the trustee of this trust.

A Checklist of important items to know regarding a Third Party Special Needs Trust:
 

The SNT is established (grantor, settlor) by family members such as parents, grandparents, and sometimes by conservators of parents/ or grandparents.   They are always formed by someone other than the person with the disability.

The SNT assets are managed by a trustee (and successor trustees) and NOT the person with the disability;  In fact, the disabled beneficiary cannot be named as trustee of the SNT.

The SNT gives the trustee or successor trustee the absolute discretion to provide whatever assistance is needed.  This means that no mandatory distributions can be made;

The SNT should prohibit giving the person with the disability more income or resources than permitted by the government;

The SNT is for supplementary purposes only; it should add to items provided by the government benefit program, and should not replace those government benefits;

The terms of the SNT define “supplementary needs” in general terms, as well as in specific terms related to the unique needs of the disabled individual;

The terms of the SNT may provide instructions for the disabled person’s final and funeral arrangement;

The terms of the SNT will determine who should receive the remainder balance of the trust after the disabled person dies;

The creator of the SNT trust determines choices for successor trustees. These can be family members, friends or professional organizations who have the best interest of the person with the disability in mind; and

A Third party SNT is a spendthrift trust and generally protects the trust against creditors or government agencies trying to obtain funds from the disabled person.


Our Glendale Special Needs Trust Law Offices serve the following areas:  Glendale, Burbank, Pasadena  Altadena, Alhambra, San Marino, La Canada Flintridge areas.

WHY HIRE US?

We are professionals who specialize in the field of Special Needs Trust Planning in Los Angeles County and Glendale.  Only the top 1% of California attorneys are Certified as Specialists who handle Special Needs Trust.   Mina Sirkin, is a nationally recognized special needs trust attorney and has served as a media expert to CNN, MSNBC, Inside Edition, NPR and KTLA regarding probate and estate matters.  She is Certified as a Specialist by the Board of Legal Specialization of the State Bar of California, in Probate, Estate Planning and Trust Law.   Mina Sirkin is rated 10/10 on Avvo.  Sirkin Law Group’s Probate Offices are located in Los Angeles, Woodland Hills, Glendale and Pasadena.  For Glendale Ca Special Needs, Call: 818.340.4479. 

Probate Mediations Can Protect Your Interest in Estates in Los Angeles County

​Los Angeles County California

PROBATE MEDIATION IS VERY EFFECTIVE IN LOS ANGELES COUNTY TO PROTECT BENEFICIARY INTERESTS IN ESTATES

Benefits of Mediation:

1.   Mediation is a method of resolving probate cases outside of court, without a trial.   Unlike complex trials, mediation is simple and easy to do. 

2.   Mediations save money for parties involved in conflict, while litigation costs thousands of dollars per month.   Most mediations resolve in one day, as opposed to trials that can lost much longer.  

  • Estate trials are very stressful. If you are a surviving spouse or a grieving child, you may want to consider the less stressful method of mediation.

3.   Mediations reduce stress.   Mediations can avoid the stress of countless court hearings, and long depositions.  

4.   Mediations take the decision-making away from the Court and put it in the hands of the parties to come to an agreement.

5.   Mediation agreements can be reduced into stipulated orders very quickly.

6.    Mediations leave nothing to chance.   All matters are collaboratively agreed upon, and judges and juries do not make the decision for you unless you specifically ask for it.

7.    Mediations allow the parties to vent and be heard by a neutral.

8.    Mediations save estates and conservatorships for the elderly and their children.

TYPES OF CASES WELL SUITED FOR RESOLUTION IN MEDIATION:

Contested Probate and Trust matters

Contested Conservatorships 

Call us for the best way to handle your estate mediation case and matter.  818.340.4479​. Call us in Glendale, Los Angeles and Woodland Hills California for Estate Mediation and Probate Dispute Resolution.

Is an Interspousal Transfer Grant Deed Enough to Transmute Property to Separate Property or Community Property in California?

Filed 9/21/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of WISHTASB KUSHESH
and FARIMA KUSHESH-KAVIANI.
 
WISHTASB KUSHESH,  
  G054936
Respondent,  
  (Super. Ct. No. 11D007966)
v.  
  O P I N I O N
FARIMA KUSHESH-KAVIANI,  
Appellant.  

Appeal from a judgment of the Superior Court of Orange County, Franz E. Miller , Judge. Reversed and remanded with directions.

Alan S. Yockelson for Appellant. No appearance for Respondent.

  1. INTRODUCTION

No published opinion to date has addressed whether an interspousal transfer grant deed (ITGD) meets the requirements for a transmutation of the character of marital property under Family Code section 852.1 The trial court concluded that the ITGD in this case did not contain the requisite language to effectuate a transmutation.

We are forced to disagree. The standard ITGD expresses an intent to transfer a property interest from one spouse to another: The constituent components of the word “interspousal” – literally between spouses – plus the words “transfer” and “grant,” plus the usual statement about the grantee (or grantees) taking the property as either community or separate property, are all clear indicators the document constitutes an express declaration of an agreement to change the marital character of the property. This document includes all those features. We therefore reverse the trial court, and remand for further proceedings as to whether the beneficially-interested spouse in this case dispelled any presumption of undue influence (see § 721, subd. (b)) that might have arisen from the circumstances giving rise to this ITGD.

  1. FACTS

Farima Kushesh-Kaviani (Wife) and Wishtasb Kushesh (Husband) were married in January 2010. The marriage did not last. Their only child, Bahram, was born in April 2011, and the couple separated within two weeks of his birth. Husband filed for dissolution in late August 2011.


During the marriage the couple lived in Husband’s separate property condominium in Laguna Niguel. But that condo is not the one at issue in this case. This case concerns a condo called “unit 13k” by the parties three doors down from Husband’s condo, acquired in May 2010 (about four months into the marriage). The price of this condo was $265,000, and the down payment was $134,654.78.

  1. All further statutory references are to the Family Code unless otherwise indicated.

The deed to the condo from the seller was made out to “Farima Kaviani, a Married Woman as Her Sole and Separate Property.” At trial, Husband admitted both the loan application and loan itself were in Wife’s name only. What’s more, on May 21, 2010 Husband signed an ITGD. It provided, all in bold and all caps, “INTERSPOUSAL TRANSFER GRANT DEED,” the ITGD recited: “FOR A VALUABLE

CONSIDERATION, receipt of which is hereby acknowledged, [¶] Vishtasb Kushesh, Spouse of Grantee Herein [¶] hereby GRANT(s) to: [¶] Farima Kaviani, a Married Woman as Her Sole and Separate Property [¶] the real property In the City or Laguna Niguel . . . [¶] Also known as . . . 13-K . . . .” Thus Wife claimed the condo should be confirmed to her as her separate property.

But Husband made his own claim to the condo as his separate property. And on that point he had one undisputed fact in his favor: All the money for the down payment had come from his separate bank account. As a backup against Wife’s separate property claim, Husband could also point to the fact that the property had been acquired during the marriage, so he could argue it was also presumptively community property. (See § 760.)

Trial thus centered on the origin of the funds in Husband’s account used for

the down payment. Though the evidence was in conflict, the trial judge found that those funds came from Wife’s father’s monies in Iran and were transferred (Wife’s attorney used the word “smuggled”) into the United States via Kuwait. Concerned about inconsistencies in Husband’s testimony, the trial court explicitly disregarded Husband’s story that the funds were the proceeds of a partnership sale somewhere in the Middle East.

As to why those funds had been channeled through Husband’s account, it was explained that Husband is a real estate investor by profession and Wife’s father trusted Husband’s expertise to handle the transaction. Also, as Wife testified, “cultural”

considerations had motivated her father to send the money to Husband.2 The idea was that unit 13k would be a place for her parents to live.

The trial judge analyzed the case this way: First, unit 13k was acquired during the marriage, so it was presumed to be community property.                                                                              Second, “we don’t worry about the title presumption” (alluding to section 662 of the Evidence Code3).

Third, the money to support the property, e.g., to “make the payments” on the mortgage, was “essentially” community funds. Then the judge asked the question, “So what could rebut the presumption?” He noted the existence of the ITGD, but agreed with Husband’s attorney that there was an absence of “magic words” that would make it “clear that’s it’s a transmutation.”4 Having found the ITGD “does not contain the requisite language” to qualify as an “express declaration” under section 852, the judge then said there was thus no need to address the question of undue influence.

The bottom line was a judgment that unit 13k was to be sold, with Wife receiving reimbursement for her separate property contribution “off the top” (see § 2640) and the parties splitting the balance. From that judgment Wife has brought this appeal.5

  1. DISCUSSION


Prior to the enactment of former Civil Code section 5110.730 in 1984, it was relatively “‘easy’” for spouses to transmute community property into separate property and vice versa, simply by oral statement. (See Estate of MacDonald (1990) 51

  • Wife’s testimony on the issue was: “Q. And why did your father not wire the money to your account, if you had an account? [¶] A. To be honest, it’s just my father, he loved Wishtasb, and he trusted him. He thought he knows and – I don’t know. It’s a culture thing, I guess. Like, men like to deal with men.”
  • The “title presumption” is found in Evidence Code section 662. It is a two-sentence statute: “The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.”
  • Here is the trial judge’s thinking on the ITGD issue: “So what could rebut the presumption? What about the transfer deed that Mr. Kushesh executed? As Mr. Sarieh [Husband’s trial attorney] points out correctly that absent language – affirmative language in the deed, the magic words if you will, making it clear that it’s a transmutation. So the deed’s ineffective to overcome the presumption.”
  • Husband has not filed a respondent’s brief. Such a failure is not treated as a de facto default, but rather the appellate court examines the appellant’s brief in conjunction with the record to see if the appellant carries its burden of demonstrating prejudicial error at the trial level.  (E.g., In re Marriage of Swain (2018) 21 Cal.App.5th 830, 834, fn. 2.)

Cal.3d 262, 268-269 (MacDonald), quoting Recommendation Relating to Marital Property Presumptions and Transmutations, 17 Cal.Law Revision Com.Rep. (1984) p. 213 (1984 Law Revision Commission Report).) The allure of easy transmutations had encouraged extensive litigation by allowing spouses to “‘transform a passing comment into an ‘agreement’ or even to commit perjury by manufacturing an oral or implied transmutation.’” (MacDonald, supra, 51 Cal.3d at p. 269, quoting 1984 Law Revision Commission Report, supra, at p. 214.) With the passage of former Civil Code section 5110.730, the era of easy transmutation came to an end.

The statute was transmogrified into current Family Code section 852 in 1992 (see Stats. 1992, ch. 162, operative January 1, 1994), with literally no change in language. Section 852 sets forth these elements: (1) the transmutation must be made in writing; (2) the writing must contain an “express declaration” of transmutation; and (3) the writing must be “made, joined in, consented to, or accepted” by the adversely affected spouse.6

Most of the litigation involving section 852 has centered on the “express declaration” element. For example, in MacDonald, a deceased husband used community funds to open three IRA accounts, with the beneficiary of each account being a trust that left most of money to one of his three children from a prior marriage. Our Supreme Court held the opening of the accounts did not qualify as transmutations of community property to separate, even though the wife signed a writing to the effect she consented to them. The reason was there was nothing in documents that warned the wife her husband was changing the character of the property. (See MacDonald, supra, 51 Cal.3d at pp.

272-273.) “Obviously, the consent paragraphs contain no language which characterizes

  • The elements of transmutation are all found in subdivision (a) of section 852. The remainder of the statute involves such collateral topics as effect on third parties, gifts of a personal nature like jewelry, and commingling. The exact text of subdivision (a) is: “A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.”

the property assertedly being transmuted, viz., the pension funds which had been deposited in the account. It is not possible to tell from the face of the consent paragraphs, or even from the face of the adoption agreements as a whole, whether decedent was aware that the legal effect of her signature might be to alter the character or ownership of her interest in the pension funds. There is certainly no language in the consent paragraphs, or the adoption agreements as a whole, expressly stating that decedent was effecting a change in the character or ownership of her interest. Thus, we agree with the Court of Appeal that these writings fail to satisfy the ‘express declaration’ requirement of section 5110.730 (a).” (MacDonald, supra, 51 Cal.3d at pp. 272-273.)

On the other hand, in Estate of Bibb (2001) 87 Cal.App.4th 461 (Bibb), a grant deed signed by the deceased husband transferring his separate property interest in an apartment to himself and his wife as joint tenants was effective to transmute his separate interest to community. The Bibb court reasoned the word “‘grant’ is the historically operative word for transferring interests in real property” and thus the grant deed “validly transmuted” the apartment into joint tenancy. (Id. at pp. 468-469, quoting MacDonald, supra, 51 Cal.3d at p. 273.)

The present case is more like Bibb than MacDonald. For one thing, there were fewer magic words in Bibb than here. Here, not only did the writing use the verb “grant” – the main point of Bibb – but the heading added the words “interspousal” – denoting a spouse-to-spouse transaction – and “transfer grant” – denoting that whoever was doing the granting was actually transferring something out of that person’s estate. Furthermore, this ITGD unequivocally stated the transfer was to make the property Wife’s as her sole and separate property, inescapably pointing the reader in the direction of a change in the marital characterization of the property.

We therefore disagree with the trial court that the ITGD did not contain enough “magic words” to effectuate a transmutation. (See Bibb, supra, 87 Cal.App.4th at

p. 468 [noting that the words “I give to the account holder any interest I have” would be

enough under MacDonald].) We do not believe any form of the word “transmute” is necessary.

From his remarks on the record, we think we know where the trial judge might have taken a wrong turn. He appears to have read too much into In re Marriage of Valli (2014) 58 Cal.4th 1396 (Valli), as shown by his allusion to not worrying about the title presumption.

In Valli, a famous pop star took out a life insurance policy – the kind that accumulates a cash value. He named his wife as the policy’s only owner and beneficiary. (Valli, supra, 58 Cal.4th at p. 1399.) In later dissolution proceedings the wife claimed the policy as her separate property based on it being solely in her name.  (Id. at p. 1400.) Most of the case centered on her argument that acquiring an asset from a third party is exempt from section 852, but the court rejected her request for an exemption. It held the insurance policy did not satisfy section 852’s requirements because it had no language indicating that any spouse-to-spouse transfer was taking place, despite its title ownership. That silence was not golden for the wife; it caused the high court to hold the policy was properly characterized as community. (Id. at p. 1406.)

The Valli court’s determination the insurance policy on Frankie Valli’s life did not meet section 852’s requirements was hardly a sunburst. Having lost on her fairly esoteric third party argument, the wife had nothing left with which to argue the insurance policy effectuated a transmutation. (See Valli, supra, 58 Cal.4th at p. 1406.) But in the process of rejecting the wife’s argument, the Valli court addressed the long-standing tension in California family law between the Family Code statutes and the title presumption set forth in the Evidence Code.7 The Valli majority held that the Family Code transmutation statutes take precedence over the Evidence Code title presumption,

  • For a brief history of the problems arising out of that tension see In re Marriage of Koester (1999) 73 Cal.App.4th 1032, 1034, discussing how the title presumption controlled the outcome of the case in In re Marriage of Lucas (1980) 27 Cal.3d 808 and the Legislature’s adverse reaction to Lucas.

but did not go so far as to say the Evidence Code presumption might never apply in some other family law context. (Id. at p. 1406.) Justice Chin, joined by Justices Corrigan and Liu, would have eliminated the title presumption entirely in actions between spouses. (Id. at p. 1409 (conc. opn. of Chin, J.) [quoting amici brief that “‘section 662 has no place in the characterization of property in actions between spouses.’”].)

We think the trial court here confused what Valli said about the title presumption with the elements of transmutation set out in section 852. It must be remembered that ITGD’s have dual roles. One the one hand, they are themselves legal title to given property. They are, after all, deeds. Under Justice Chin’s view (and we think under the Valli majority holding as well), the title presumption they convey is not effective as against section 852. So on that point the trial judge was quite correct not to “worry” about the title presumption insofar as the ITGD simply reflected the legal title of the property.

But ITGD’s are not only title documents. They are also writings that

expressly transfer spousal interests, in which spouses unequivocally make “interspousal” transfers to another, and do so, to harken back to Bibb, by way of the traditional word for a conveyance – a “grant.” They don’t just reflect title. They use a verb – “grant” – to convey title. And in that role ITGD’s do meet section 852’s transmutation requirements.

Of course, whenever there is a transfer from one spouse to another a rebuttable presumption of undue influence arises if the transaction gives one spouse an unfair advantage over the other. (See In re Marriage of Burkle (2006) 139

Cal.App.4th 712, 732, citing § 721.) The trial court did not address whether in this case Wife obtained an unfair advantage over Husband, or, if so, whether she rebutted the ensuing presumption. While the question of unfair advantage might arguably be one of law we could address now, the question of whether a spouse has rebutted a presumption of undue influence is unquestionably one of fact. (See In re Marriage of Fossum (2011)

192 Cal.App.4th 336, 344.) Rather than preempt the trial court on the unfair advantage issue, we exercise our discretion not to address it now given that the case must be returned to the trial court in the first instance anyway.

  1. DISPOSITION

We conclude this ITGD was valid to transmute condo unit 13k from community property into Wife’s separate property. We therefore reverse the judgment declaring the condo to be community property. The trial court must now reach the issue of whether the transaction gave Wife an unfair advantage over Husband and, if so, whether she rebutted the ensuing presumption of undue influence. Assuming those issues are decided in Wife’s favor, our opinion is without prejudice to Husband to make whatever claims he might make for reimbursement of his half of any possible community contribution to unit 13k during this short marriage. Because that issue has not been briefed, we express no opinion on it.

Since Husband has not filed a respondent’s brief, there is no need to allocate costs of appeal. Wife shall bear her own.

BEDSWORTH, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.

Parties entering into Interspousal Transfer Grant Deeds should note that the new case law can easily impact your rights as spouses, and can impact the inheritance of your children after you pass away by changing spousal property petitions. To get help with elder family law issues, call Mina Sirkin, Specialist in Estate Planning, Probate, and Trust Law in Los Angeles County California who litigates spousal property petitions in the Los Angeles Probate Court on a regular basis

Why do you need a cohabitation agreement, if you live together?

Living together is joyful, but looking ahead to many years from now, you would want to visit all the reasons why a cohabitation agreement paired with an estate plan becomes important, if you are a resident of Los Angeles County, California.

Here is a list of why you need a co-habitation agreement?

  1. If your life partner is incapacitated, you will need a document that does a few things: a. specifies who will take care of your partner’s medical needs; b. how his/her care will be paid; and c. where he or she will live, if incapacitated.
  2. Where an incapacitated partner lives, while incapacitated has a direct impact on what finances will be left to take care of you.
  3. You will want to find out caregiving costs, and facility costs so you can determine what to put in your documents.
  4. If you and your partner will engage in creating reciprocal wills, what happens if one of you wants to change his or her will or trust?
  5. Who will be the executor and trustee of your partner’s trust impacts your inheritance from your partner?
  6. If your partner is not able to live at home, how will the mortgage or rent be paid? Will you still be responsible for the entire rent?
  7. Who will be the agent under the power of attorney or the conservator of your partner impacts every decision you make after your partner is incapacitated. That means that the potential inheritance by other people, may play a role in your partner’s well-being, as well as yours.
  8. What happens if both partners become incapacitated? This is a very important question that must be answered in a cohabitation agreement, along with power of attorney documents.
  9. Agreements can define many rights, including the rights to inherit from each other. Los Angeles County courts are very busy. You won’t want to leave these decisions to the courts.

To talk to an estate planing attorney about your rights in co-habitation, call Mina Sirkin, estate planning counsel in Los Angeles County, San Fernando Valley, California. Call 818.340.4479 or email Info@SirkinLaw.com

Mina Sirkin, Estate Planning Specialist Los Angeles County

As years go by, the practice of law has become very specialized, especially when it comes to estate planning in Los Angeles. Gone are the days where an attorney was a general practitioner handling multiple unrelated areas of law.

A tremendous amount of work goes into becoming a specialist in the area of estate planning. Not only does an attorney pass a secondary specialization bar exam, there are rigorous qualification requirements to obtain the specialist designation.

What can you expect from your specialist?

You should be able to expect that your attorney will dedicate time to you case and be able to solve complex issues involving your will, estate and trust. There are nuances of law that are known to those who practice this area on a regular basis.

Knowledge of the judges in the probate court is one of those things that is important, not just in probate, but in determination of how your estate many be interpreted in the future, in the event of a family dispute.

Some of the interesting aspects of estate planning go back many years. In the old days, trusts were created in a will. These were called testamentary trusts. Most young lawyers do not know how to handle testamentary trusts, or to create one where the language of a handwritten will might lend itself to a trust interpretation.

Calling a specialist is important. You can count on us for advice in estate planning and trust law. We are here to help you and your family in difficult times.

By: Mina Sirkin, Specialist Estate Planning attorney in Los Angeles County, California. 818.340.4479. Email: Info@SirkinLaw.com

What Opportunities does estate planning unveil for your family? Woodland Hills and Los Angeles County

What opportunities does estate planning unveil for your family?

Estate planning is a doorway to review your investments, plan for the future, and resolve family conflicts before death.   The process of estate planning generally starts with viewing your assets, and determining how they should pass to your loved ones.

As you review your assets, you may discover other things which may be opportunities to you, without you even knowing it.   First, review if you have assets which will produce enough income in your future years.   Next, determine how to pass the assets to your heirs and loved ones with the minimum capital gains tax.

Most people are not familiar with “step-up in basis.”   A step-up in basis occurs at death, which essentially means that the pre-death gains get extinguished, when the asset in inherited.   What assets qualify for a step-up in basis depend on the manner they are received.  If you give an asset to your child during your life, it does not receive the step-up in basis.   But, if your child inherits it from your trust, she/he does get the step-up in basis which may make possible hundreds of thousands of dollars in savings.

What about resolving family disputes in estates?  When you prepare a will or trust, discussing your feelings about your children, and your loved-ones, and not-so-loved ones lets the estate planning attorney better prepare your estate documents in your case.   Feelings are the basis for creating plans, no matter how you feel about your relatives.   Some people love their in-laws and treat their son or daughter-in-law like a child.  Others will tell the estate planning attorney that their goal is to save their child’s inheritance from the greedy hands of their son/daughter-in-law.

Invested asset generally have a rate of return.  You can estimate your rate of return when reviewing your assets.   This opens the door for you to talk to your investment advisor about your future goals.   Talk to us about how you intend to have your beneficiaries receive the assets. We will also discuss with you how you can avoid conservatorships.

In Los Angeles California: By: Mina Sirkin is a wealth planning attorney in Los Angeles and Woodland Hills Ca, who is Board Certified as a Specialist in Estate Planning, Probate and Trust Law in California. Ms. Sirkin frequently writes about planning your estate for wealth protection and future growth.  Call 818.340.4479 or email us here.

When Estate Plans Don’t Work – Paying Attention

When you create a living trust or an estate plan, you go into it with the best of intentions, and never think that it may not work in the future.  Pay attention to some of the following points and review your trust to see if you have any of these issues which create administration problems in your estate:

You made specific gifts of cash to cousin Jane, but did not consider that you only allocated real estate to the survivor’s share, and you also specifically gifted the real estate to cousin Joe.   Because specific gifts get paid off the top of the trust, this means that your specific cash gifts will not get paid.   To make sure that cousin Jane gets her specific gift, you must decide to either cash in the survivor’s trust, or indicate that upon your death, if there is no cash to pay that gift, it either is extinguished, or lapses, or you instruct your trustee to sell the real estate allocated to cousin Joe’s gift.

People often mistakenly believe that their life insurance will be paid according to the terms of the trust, but forget to change the beneficiary from an individual to a trust.   This means that the individual beneficiary will get the entire life insurance, plus anything else you may have left him or her in the trust.  If you don’t want there to be a double gift, check the beneficiaries of your life insurances often.

People who own valuable artwork, or guns have specific problems in their estate plans which can arise from the ownership of those assets.   Artwork which does not have a provenance, and cannot be traced via purchase receipts, can create a situation for the trustee, where it can be deemed stolen art, or create liability for the trustee, if he or she states that it is by a certain artist, which cannot be verified.    If you have valuable art, be sure to leave the receipts for its purchase in a folder in your safe, with specific instructions for your trustee, as to where and when you bought them.

Guns pose additional problems.  Unregistered guns must be turned in to law enforcement within 30 days of death.  You must register all of your guns, so that your executor or trustee, may re-register them after your death, so that they can be transferred according to law, via an FFL.   Registration documentation should be kept in your safe with specific instructions as to which gun dealer your trustee should contact.

By: Mina Sirkin, Attorney, Board Certified in Estate Planning, Trust Law and Probate in Los Angeles County California.  Ms. Sirkin frequently writes about estate planning issues and what may or may not work in your trust.  Call our estate planning attorneys at 818.340.4479 or email us here.

Can You Restrict A Power of Attorney?

Yes, you can restrict a power of attorney in Los Angeles California, if you are the principal, you are competent, and you use the right restrictive language in your Durable Power of Attorney.

Durable v.  Non-Durable Power of Attorney

First, a Durable Power of Attorney is one that stays valid, if you later become incapacitated.   A non-durable power of attorney expires if you become incapacitated later.   This difference is very important.

Second, Power of Attorney documents and forms expire at death.   You can’t create one if you are incompetent.    You must remember these as most people are not aware that you cannot engage in financial transactions after death with a power of attorney.   Your Financial Power of Attorney should be durable, if you want it to continue to work.

How can you restrict a power of attorney?

You can limit several things by the language you put in your power of attorney:

  1.  You can specify if your co-agents must act together, or can act alone.  This can be a problem with most banks.
  2. You can specify the powers you are giving your agent.  You can also take away powers.
  3.  You can restrict the term of the power of attorney.  For example, you can say that the power of attorney is value for only a few months or a few years.   The term is completely up to you.   If you don’t limit the term, it goes on till you pass away.
  4. You can restrict your agent from gifting to himself, or to others.   You should really consider this if you have children who may gift to themselves.
  5. You can require an accounting in your power of attorney, or state that it is not needed.
  6. You can require that your agent post a bond.
  7. You can also limit the compensation of your agent to a certain hourly rate.

Talk to Mina Sirkin about your Financial Power of Attorney, and how you can restrict the use of a Durable Power of attorney.  Call our attorney at 818.340.4479 for a free consultation appointment about power of attorney documents.  Email us:  Info@Sirkinlaw.com

How Fast Can You Get a Conservatorship in Los Angeles?

The speed of getting a conservatorship in Los Angeles depends on the facts of your case.   First, you must know that how fast a conservatorship may be granted depends on the urgency of the facts and circumstances of your case, especially the presentation of it in the Los Angeles Probate Court.

A Two Speed Gear System for Conservatorship Exists:

A Regular Conservatorship is the first gear, where there are no emergencies and you can move at the speed of the court, which these days is about 70 days to set the first hearing.    This means that you may have a disabled person, but you are giving informal help or him or her.  

A Fast speed conservatorship is the second gear, where there is an emergency and you must obtain quick authority to act for the disabled person.  Examples of this may be that someone is in the hospital, and decisions must be made, where the hospital requires a decision-maker, but no one has a health care power of attorney or an Advance Health Care Directive for the disabled individual.   Surgeries or other circumstances may dictate that someone make the decision, other than the disabled individual.  On average, it takes about 5 days to obtain a fast speed or temporary conservatorship in Los Angeles County.  The circumstances govern if the court is inclined to act on your facts which are stated in a Declaration in support of the Conservatorship.

Temporary Conservatorships or fast speed conservatorship can also be set up for finances.  For example, if there is no asset management power of attorney and rent has not been paid where the disabled person may get evicted, or if the property of the disabled person is at risk, or if he or she stands to lose any assets because of a person who is trying to take his or her assets, then the court will consider giving you a conservatorship over your loved one to preserve the assets.   These also work where there is undue influence or fraud.

Keeping your facts straight is the most important part of getting a speedy conservatorship.  Your declaration has to leave no doubt in the mind of the reader that, if the conservatorship is not granted now, there will be a loss either of a life, health, or assets in the very near future.

By: Mina Sirkin, Board Certified Specialist in Probate, Estate Planning and Trust Law attorney, who regularly writes about conservatorship planning in Los Angeles.  Call 818.340.4479 for a free consultation appointment.