What type of attorney do you need for a disabled child or a disabled parent?

Special Needs Trust Attorney for Disabled Child or Parent in San Fernando Valley

Special Needs Trust Woodland Hills San Fernando Valley Ca Attorneys

Special Needs Trusts Protect Special Needs Parents and Kids in the San Fernando Valley California

When you are searching for services for a disabled child or adult, you need to locate an attorney who understands special needs trusts in the San Fernando Valley. For children and adults who receive public benefits or Medi-Cal benefits, a Special Needs Trust serves as a valuable tool in preserving assets needed to care for them in the future.   If a child is eligible to receive benefits in the future, a Special Needs Trust becomes an essential part of a parent’s estate plan in protecting the minor disabled or adult disabled child.  This type of trust may be created as part of the parents’ or grandparents’ estate plan.   It is available both as a revocable trust and an irrevocable trust. If you are a parent of a special needs or disabled child in Los Angeles, one of your tasks is to make sure other family members do not unwittingly cause the denial of government benefits to your child by leaving outright benefits.

If you are a parent or grandparent of a special needs child or adult, you must consider this valuable tool in protecting the disabled child or adult. Leaving assets directly to a disabled person or child may disqualify them from certain public benefits. 

Create a Special Needs Trust to Supplement Needs of the Disabled Child or Parent

Forming a third party Special Needs Trust is just one of the techniques which provide supplemental help to a person receiving government benefits.   Supplemental or Special Needs trusts enable the trustee to use trust funds to supplement and aid a disabled person, without ever disqualifying them from SSI and Medi-Cal benefits.  Make an appointment with our Medi-Cal planning attorneys in San Fernando Valley to address your Medi-Cal questions. 

first party Special Needs Trust is one type of trust which is used for assets of the disabled person, and in litigation and settlement planning for a disabled person.  This type of trust allows the disabled person or child to keep the settlement proceeds and the public benefits. Persons over 65 years can only use a pooled special needs trust if the money is theirs, or if it has been left to them outright from someone’s estate.

Caring for your special needs child or parent

Families with special needs members often struggle over many decisions involving the future of their special needs children.   We are here to preserve assets and government benefits and can guide you as to your choices in caring for the disabled.  Comfort and care can be provided with a Special Needs Trust for your disabled child or your parent.

Mina Sirkin is a Special Needs Trust Attorney in San Fernando Valley California, Woodland Hills, Ca.  Ms. Sirkin is a Certified Specialist Lawyer in Estate Planning, Probate and Trust Law by the State Bar of California.  Special Needs Trust Woodland Hills Ca.  Our San Fernando Valley lawyers are here to assist you with your special needs trust questions in Woodland Hills California and in Los Angeles. Call us at 818-340-4479.  MSirkin@SirkinLaw.com.

If you are looking to protect a special needs person and need inheritance advice regarding a disabled child or disabled parent, please feel free to contact us above or at 818.340.4479.

Estate Advice for Children and Parents

Estate planning strategies vary for elderly parents as compared to parents of younger children. If you are searching for advice for your parents, you have come to the right place. Sirkin Law Group helps families create strategies in estates that protect elderly parents from scams and unlawful transfers late in life.

As experienced elder law attorneys since 1993, we have come across many situations where someone is attempting to take advantage of our client’s parent. Sometimes, the financial abuse occurs in the family, and other times, there are caregivers, neighbors, friends and others that are attempting to defraud the elderly.

Can you give any advice to your parents about their estate? The answer is yes. Bringing attention and awareness of news stories affecting the elder parent, creates room for discussion and then advice. Of course your parents want to keep their independence and that should be respected to allow them to preserve independence so long as it does not make their entire estate open to deceit.

Let your parents know that there are many types of scams. There are lottery scams, sweetheart scams, get rich quick scams, as well as IRS or FTB type scams which are currently directed at your elderly parents.

Can you get permission from your parents to talk to their financial advisors and bankers? Yes. One way to protect your parents is to request them to allow you to simply talk to their financial planners. This does not mean that you will necessarily have access to their accounts. It enables the financial advisor to warn you with a call or email if there is some type of unusual activity involving the financial account. Most banks and brokerage firms are implementing tools to keep elder parents safe and their children informed.

Estate planning for elderly parens differs from the estate planning for parents with young children. Ask us to help you and your parents in planning for your estates.

#estateplanning #parents #children #losangeles #sanfernandovalley

Mina Sirkin is an elder law attorney in the San Fernando Valley / Los Angeles County, with offices in Woodland Hills, Glendale and Pasadena who provides children and parents with estate legal advice. For appointments call 818.340.4479 or email us at Info@SirkinLaw.com.

What can a conservator of estate do to protect himself/herself in Los Angeles?

If you are appointed as a conservator of the estate for someone in Los Angeles County, there are a number of things you need to know to protect yourself when serving in this position and to comply with your duties.

  1. A conservator of the estate is the protector of the estate.
  2. You cannot use the assets or income of the conservatorship estate for your personal benefit.
  3. You cannot pay yourself without a prior court order.
  4. You must insure the property of the estate. Fire, liability and other types of insurance must be investigated.
  5. Never commingle assets of the conservatorship estate with your own assets. This means that you must set up a separate conservatorship account.
  6. Your most important task is to keep accurate books and records of the assets, income and expenses of the conservatee so you can properly account to the court.
  7. Keep paper receipts of all expenditures, even if it is of a small dollar amount.
  8. Ask your conservatorship attorney for advice when you are not sure of the viability of an expense.
  9. Investments in the conservatorship estate are subject to the prudent rule and you must get competent financial advice.
  10. You are responsible for filing the conservatee’s income tax return.

Mina N. Sirkin is a Board Certified attorney in Los Angeles California handling estates, trusts and conservatorships in Los Angeles County, and advising each conservator of the estate in Los Angeles about their duties. Call 818.340.4479 or email us Info@SirkinLaw.com

Resolving Conservatorship Problems in Los Angeles

Many times conservatorship problems mask the real or underlying issues that face parents and their children when it comes to elderly parents in Los Angeles. At times, a child believes that he is best suited to care for the parent. Siblings don’t always see “care” in the same way.

Gender differences create different perceptions of what “care” is and the type of care that the parent should be provided. Some of the greatest challenges come from different points of view. Here are some common issues:

  1. Does mom or dad need to go into a care facility?
  2. If yes, what type of care facility is appropriate?
  3. If not, what are the resources that are needed to care for the parents in their own home?
  4. What happens when one spouse dies? Does the survivor continue to stay at home?
  5. Recall that when one spouse dies, there will no longer be two social security checks. The surviving spouse generally gets the higher of the two social security checks. Therefore, a reduction in income should be anticipated when planning for care.

Talking to a good elder law attorney can open up the discussion about care planning in Los Angeles. Call Mina Sirkin to discuss various ways we can resolve conservatorship problems in your family. Call 818.340.4479 or email us here.

Trust Disputes We Resolve in Los Angeles

When resolving trust disputes, clients often us whether or not we can help them in Los Angeles County. Below is a list of various type of disputes involving trusts we can help you resolve.

Disputes concerning the internal affairs of the trust or to determine the existence of the trust.

Disagreements about or questions of construction of a trust instrument.

Asking the court to determine existence or nonexistence of any immunity, power, privilege, duty, or right or the trustee or a beneficiary.

Lawsuits regarding the validity of a trust provision or an amendment.

Determining or ascertaining the rightful beneficiaries of a trust, and determining to whom property shall pass or be delivered upon final or partial termination of the trust, to the extent the determination is not made by the trust instrument.

Disputes about accountings, or settling the accounts and passing upon the acts of the trustee, including the exercise of discretionary powers.

We can help you get instructions from the court, if you are a trustee or a beneficiary looking to have the court instruct the trustee.

If your trustee is not acting properly, we can ask the court to give him and order to provide a copy of the terms of the trust.

If your trustee is not forthcoming with information, we can file a petition asking for more information about the trust under Section 16061 if the trustee has failed to provide the requested information within 60 days after the beneficiary’s reasonable written request, and the beneficiary has not received the requested information from the trustee within the six months preceding the request.

When you need an accounting, we are here to help. Account to the beneficiary, subject to the provisions of Section 16064, if the trustee has failed to submit a requested account within 60 days after written request of the beneficiary and no account has been made within six months preceding the request.

If you are a trustee, we can ask for additional powers;

Where there are questions of fixing or allowing payment of the trustee’s compensation or reviewing the reasonableness of the trustee’s compensation, we can reprsent you in court.

Appointing or removing a trustee.

Accepting the resignation of a trustee.

Compelling redress of a breach of the trust by any available remedy.

Approving or directing the modification or termination of the trust.

Approving or directing the combination or division of trusts.

Amending or conforming the trust instrument in the manner required to qualify a decedent’s estate for the charitable estate tax deduction under federal law, including the addition of mandatory governing instrument requirements for a charitable remainder trust as required by final regulations and rulings of the United States Internal Revenue Service.

Authorizing or directing transfer of a trust or trust property to or from another jurisdiction.

Directing transfer of a testamentary trust subject to continuing court jurisdiction from one county to another.

Approving removal of a testamentary trust from continuing court jurisdiction.

Reforming or excusing compliance with the governing instrument of an organization pursuant to Section 16105.

Determining the liability of the trust for any debts of a deceased settlor. However, nothing in this paragraph shall provide standing to bring an action concerning the internal affairs of the trust to a person whose only claim to the assets of the decedent is as a creditor.

Determining petitions filed pursuant to Section 15687 and reviewing the reasonableness of compensation for legal services authorized under that section. In determining the reasonableness of compensation under this paragraph, the court may consider, together with all other relevant circumstances, whether prior approval was obtained pursuant to Section 15687.

If a attorney member of the State Bar of California has transferred the economic interest of his or her practice to a trustee and if the member is a deceased member under Section 9764, a petition may be brought to appoint a practice administrator. The procedures, including, but not limited to, notice requirements, that apply to the appointment of a practice administrator for a deceased member shall apply to the petition brought under this section.

If an attorney member of the State Bar of California has transferred the economic interest of his or her practice to a trustee and if the member is a disabled member under Section 2468, a petition may be brought to appoint a practice administrator. The procedures, including, but not limited to, notice requirements, that apply to the appointment of a practice administrator for a disabled member shall apply to the petition brought under this section.

The court may, on its own motion, set and give notice of an order to show cause why a trustee who is a professional fiduciary, and who is required to be licensed under Chapter 6 (commencing with Section 6500) of Division 3 of the Business and Professions Code, should not be removed for failing to hold a valid, unexpired, unsuspended license.

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