Daily Care for Elder Parents: Activities of Daily Living: Daily Care: Activities of Daily Living

Caring for your parents can be challenging. Most children regardless of their age, do not know how to take care of their elderly parents. These are some basic things you should know about self-care:

1. What are ADLs?

ADLs are activities of daily living. These are things that every person should be able to do for themselves each day. If an elderly person starts to fail, they will not be able to do one or more of the ADLs.

Look out for ADLs of your parents

a. Personal hygiene: Bathing, grooming, oral, nail and hair care.

b. Continence management: A person’s mental and physical ability to properly use the bathroom. c. Dressing: A person’s ability to select and wear proper clothes for different occasions.

d. Feeding: Whether a person can feed themselves or needs assistance.

e. Ambulating: The extent of a person’s ability to change from one position to the other and to walk independently.

Elder Law attorneys of Sirkin Law Group handle the legal and care aspects of people’s lives. We can connect you to geriatric care managers, professional fiduciaries and other elder providers to assist you in managing your parent’s care. More about conservatorships here.

During the stay-at-home orders, we are available to speak with you by phone, FaceTime and Zoom. The initial eldercare consultation is always free. Call Sirkin Law at 818.340.4479.

MINA SIRKIN

SIRKIN LAW GROUP, PC

818.340.4479

Sachs v. Sachs - California Court of Appeal 2020: Sachs v. Sachs – California Court of Appeal Opinion 2020

Filed 1/7/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

BENITA SACHS, as Trustee, etc.,       Plaintiff and Respondent,   v.   AVRAM M. SACHS,       Defendant and Appellant.   2d Civil No. B292747 (Super. Ct. No. 18PR00032) (Santa Barbara County)  

                  Probate Code[1] section 21135 provides that transfers of property to a person during the transferor’s lifetime will be treated as an at death transfer to the person under certain conditions.  All of these conditions require a writing.  Here we decide that the transferor’s record of amounts he periodically distributed to his children is a writing that satisfies the requirements of section 21135.     

                  Avram M. Sachs appeals from the probate court’s order granting a petition for instructions.  (§ 17200.)  The order allowed the trustee (his sister, Benita Sachs) to treat lifetime gifts to trust beneficiaries as advances on their inheritances.  We affirm.

FACTUAL AND PROCEDURAL HISTORY

                  David L. Sachs had two children, Benita and Avram.[2]   David established a trust in 1980 when Benita was 20 years old and Avram was 12.  The trust provided for small distributions to other beneficiaries, but most of the trust corpus would be distributed to Benita and Avram equally on David’s death.  David was the original trustee.

                  In 1989 David began to keep track of money distributed to his children on papers he referred to as the “Permanent Record.”  When a child asked for money, David would tell the child that the distribution would be reflected on the Permanent Record.

                  In June 2013 David began to experience cognitive problems due to a stroke.  He hired Ronda Landrum as his bookkeeper to help manage his finances.  At David’s instruction Landrum continued to make distributions to Avram and Benita.  Landrum said David was adamant that she keep a record of the distributions.  After a distribution was made David would often confirm that the distribution was on the list.  Landrum kept a list for each child in the form of an electronic spreadsheet.  David told Landrum on more than one occasion that keeping the list was important so that payments made to his children could be deducted from their respective inheritances. 

                  In October 2013 David resigned as trustee and Benita became the successor trustee.  Following her appointment, she found the Permanent Record among her father’s papers.  The record consists of a separate file for each child.  The entries were made entirely in David’s handwriting.  The papers list the dates and the amounts distributed beginning when each child attained age 30.  The entries were not all made with the same pen, and the papers were of different types and ages.

                  In September 2014 Landrum advised the children that expenditures for David’s residential care and payments to the children were depleting the trust at a rapid rate.  Avram continued to ask Benita for distributions from the trust.  Benita’s resistance caused friction between the siblings.  In a series of e-mails Avram sought to assure Benita by repeatedly stating that the distributions would go on his record.  One of the e-mails acknowledged that previous distributions made by David went on his record.

                  In October 2015 Benita learned that Avram was contending the Permanent Record did not exist or that he was not bound by it.  By then, David’s mental condition had deteriorated to such an extent that he could not be asked about his intention in creating the Permanent Record.

                  After David’s death, Benita filed this petition for instructions to equalize the distribution of assets from the trust.  She claimed that the disparity in lifetime distributions in favor of Avram should be deducted from Avram’s distributive share of the trust.  The trial court granted the petition, and found that Avram received $451,027 more than Benita in lifetime distributions.

DISCUSSION

                  Section 21135, subdivision (a) provides in part:  “Property given by a transferor during his or her lifetime to a person is treated as a satisfaction of an at-death transfer to that person in whole or in part only if one of the following conditions is satisfied:  [¶] (1) The instrument provides for deduction of the lifetime gift from the at-death transfer. [¶] (2) The transferor declares in a contemporaneous writing that the gift is in satisfaction of the at-death transfer or that its value is to be deducted from the value of the at-death transfer. [¶] (3) The transferee acknowledges in writing that the gift is in satisfaction of the at-death transfer or that its value is to be deducted from the value of the at-death transfer.”  (Italics added.)

Subdivision (a)(2) has been satisfied

                  No special form or even the decedent’s signature is necessary to satisfy the writing required by section 21135, subdivision (a)(2).  (Estate of Nielsen (1959) 169 Cal.App.2d 297, 303.)  Here, the trial court could reasonably conclude that the Permanent Record is sufficient to satisfy the writing requirement.  The writing is in David’s hand and appears to be contemporaneous.  The court noted David used different pens and the papers on which the notations were made were of various ages.  As the court stated, “The existence of [David’s] record, in and of itself is highly persuasive . . . .”  In fact, keeping such a record would seem to have no purpose other than to equalize distributions between David’s children.

                  Avram cites In re Estate of Vanderhurst (1915) 171 Cal. 553, for the proposition that unsigned ledgers alone are categorically insufficient to establish a donor’s intent to treat lifetime transfers as advancements.  In Vanderhurst the testator died leaving several children.  His will provided that sums paid to a son and his children as shown by testator’s books of accounts shall be treated as advancements.  The court held the trial court erred in treating the amounts paid to his two daughters as shown in testator’s books of accounts as advancements, based on the language of the will.  Vanderhurst is simply a case involving the construction of a will.  It does not stand for the proposition that unsigned ledgers alone are categorically insufficient to establish a donor’s intent.

                  Avram argues the Permanent Record was not properly authenticated.  There is no particular requirement for how a writing is authenticated.  (Evid. Code, § 1410.)  The trial court’s finding that sufficient foundational facts were shown is reviewed for abuse of discretion.  (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 684.)  Benita’s testimony that she found the Permanent Record among her father’s papers, and that the record is in her father’s hand is sufficient.  There was no abuse of discretion.

Parole evidence was properly admitted to interpret the writing

                  Avram argues the trial court erred in considering parole evidence of David’s intent.  If parole evidence was necessary, the court did not err in considering it. 

                  Section 21102, subdivision (c) provides that extrinsic evidence is admissible, to the extent otherwise authorized by law, to determine the intention of the transferor.  The subdivision applies to a will, trust, deed, or any other instrument.  (§ 21101.)  Such extrinsic evidence includes parole evidence.  (Estate of Karkeet (1961) 56 Cal.2d 277, 283 [trial court erred in excluding testimony to aid in interpreting will].)  Nothing in the language of section 21135, subdivision (a)(2) indicates that the writing required by that subdivision is an exception to the rule allowing parole evidence to aid in interpreting a writing.

                  Avram refers us to what he considers the legislative history of section 21135, consisting of reports by the California Law Revision Commission (CLRC) calling for the relaxation of requirements for proving an advancement by repealing section 21135.  An attorney responding to the report opposed repealing section 21135, and recommended an amendment to the section eliminating the need for a writing to prove an advancement.  Avram argues the Legislature’s failure to adopt the attorney’s proposed amendment shows that it rejected the use of parole evidence in the context of section 21135.

                  That the Legislature ignored the report and comment says nothing about legislative intent.  No member of the Legislature is required to read a CLRC report, much less consider a private attorney’s comment on it.  Moreover, the report and comment recommended eliminating the requirement of a writing to prove an advancement.  They say nothing about the use of parole evidence to explain the writing required by section 21135, subdivision (a)(2).

                  Nor do the cases on which Avram relies convince us that parole evidence is not admissible to explain the writing.  In Estate of Rawnsley (1949) 94 Cal.App.2d 384, 387, no writing was offered into evidence.  The only evidence offered to show the testator intended an advancement was parole evidence.  The court’s statement that parole evidence is excluded must be read in that context.  Rawnsley does not hold that parole evidence cannot be admitted to authenticate and explain a writing.

                  In Estate of Lackey (1971) 17 Cal.App.3d 247, a husband and wife made reciprocal wills.  The wills provided for gifts to specified relatives upon the death of the survivor.  Wife predeceased husband.  After wife died, husband distributed checks to the relatives named in the wills in the amounts specified in the wills.  On husband’s death, his personal representative claimed the checks were advances of the amounts specified in his will.  Most of the beneficiaries acknowledged in writing that the gifts were advances, but two of the beneficiaries did not.  Husband’s personal representative sought to introduce evidence of a letter from husband to the beneficiaries stating husband was paying the beneficiaries what wife’s will “‘stated before it was probated.’”  (Id. at p. 252.)  The Court of Appeal stated that the letter, assuming it was admissible, was not evidence of husband’s intent to make advances from amounts stated in his will, because it referred only to his wife’s will; that the checks indicated nothing of his intent to make advancements; and that oral evidence was not admissible.  (Id. at pp. 252-253, citing Estate of Rawnsley, supra, 94 Cal.App.2d 384.)  In so holding the Court of Appeal acknowledged its holding defeated husband’s intent.  (Lackey, at p. 253.)

                  Avram’s reliance on Lackey is misplaced.  Assuming, as the Court of Appeal did, that the letter was admissible for the truth of the matter, the letter stated husband was making payments under wife’s will, not his own.  Moreover, the court cited Rawnsley for the principle that parole evidence is inadmissible to determine the testator’s intent to make advancements without noting that the only evidence offered in Rawnsley was parole and that there was no writing to interpret.  The holding in Lackey violates sections 21101 and 21102, subdivision (c), allowing extrinsic evidence to determine the intent of the transferor.  We decline to follow Lackey.

Subdivision (a)(3) has been satisfied

                  Avram contends the e-mails he sent to Benita do not constitute sufficient evidence to satisfy section 21135, subdivision (a)(3), that “[t]he transferee acknowledges in writing that the gift is in satisfaction of the at-death transfer.”  We disagree.

                  Avram argues the statement in his e-mails that “it goes on my record” is too amorphous to constitute an acknowledgement.  But Avram’s argument is based on the claim that parole evidence is inadmissible.  We have rejected that argument.

                  The statement (“it goes on my record”) was made in the context of Avram’s request for distributions from the trust.  Given the context, the trial court could reasonably conclude the e-mails constitute a written acknowledgement that the distributions are advancements.

                  Avram argues that he never gave such an acknowledgement to David.  But subdivision (a)(3) does not require that the acknowledgment be contemporaneous with the advancement.  An acknowledgment that a distribution goes on Avram’s record as an advancement can reasonably be construed as an acknowledgment that prior distributions reflected on the record were also advancements. 

The court properly found a disparity in payments

between the parties

                   Avram contends Benita failed to demonstrate there is a disparity between amounts given to Avram and Benita.  We again disagree.

                  Avram’s argument is based on a view of the evidence most favorable to himself.  But that is not how we view the evidence.  We look only to the evidence supporting the prevailing party.  (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 872.)  We reject evidence unfavorable to the prevailing party as not having sufficient verity to be accepted by the trier of fact.  (Ibid.)  Where the trier of fact has drawn reasonable inferences from the evidence, we have no power to draw different inferences.  (McIntyre v. Doe & Roe (1954) 125 Cal.App.2d 285, 287.)  The trier of fact is not required to believe even uncontradicted testimony.  (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028.)

                  Avram argues there is insufficient evidence that the Permanent Record is “complete, accurate and/or corresponds to lifetime gifts that [David] made to his children.”  But it does not purport to be a complete and accurate record of lifetime gifts.  It only reflects those gifts David chose to be taken into account in adjusting the final trust distributions.  In addition, Avram’s e-mails to Benita confirmed that the distributions Benita made to Avram would go on his Permanent Record.

                  Avram did not challenge any specific distribution in the trial court, and he waited until his reply brief to challenge specific distributions on appeal.  This presents a double bar to considering the issue.  We will not consider points on appeal that were not presented to the trial court.  (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [failure to raise the point in the trial court waived right to challenge on appeal].)  Moreover, we will not consider matters raised for the first time in the reply brief.  (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 322.)

DISPOSITION

                  The judgment (order granting petition for instructions) is affirmed.  Benita shall recover her costs on appeal.

                  CERTIFIED FOR PUBLICATION.

                                                      TANGEMAN, J.

We concur:

                  GILBERT, P. J.                             

                  PERREN, J.

Colleen K. Sterne, Judge

Superior Court County of Santa Barbara

______________________________

                  The Stone Law Group, Kenneth H. Stone and Scott G. Braden, for Defendant and Appellant.

                  Reicker, Pfau, Pyle & McRoy, Alan A. Blakeboro, Diana Jessup Lee and Meghan K. Woodsome, for Plaintiff and Respondent.


            [1] All further statutory references are to the Probate Code unless otherwise specified.

            [2] We refer to all parties by their first name for ease of identification.  No disrespect is intended.

Where to file a Conservatorship Petition in California?

In the next video, we discuss the appropriate place to file a conservatorship petition in California. Our practice focus is in Los Angeles Conservatorships.

Watch for our other videos here or call us at Sirkin Law Group, PC 818.340.4479 for a free consultation. Speak to Mina Sirkin, Conservatorship Attorney.

How to prevent financial elder abuse in Los Angeles?

Many clients wonder if they can truly prevent financial elder abuse of a Los Angeles relative. To prevent elder abuse, the Los Angeles County court has implemented a few rules in addition to California’s elder abuse law which add to the protection of elders’ finances.

Preventing Elder Financial abuse in Los Angeles is about a few things:  1) Preparation; 2) A little paranoia, mixed with restricting one’s own rights to amend, withdraw, or revoke a trust, and making transfers of assets, and changes under court supervision, or under a professional’s exclusive supervision; and 3) taking quick action if it actually happens.

PREVENTATIVE ESTATE PLANNING PROTECTS AGAINST ELDER FINANCIAL ABUSE

Most of the financial elder abuse happens in families, where one child has a sense of entitlement, or by a caregiver, or a spouse.   Sometimes, financial elder abuse happens at the hand of a caregiver.   Sometimes, the caregivers go very far, and become spouses to the elderly, and run up large sums of credit card debt.  A taking for wrongful use is elder abuse in California.  So, spending sprees on the elder’s credit card may constitute the “wrongful taking” element of financial elder abuse purposes. Welf. and Inst. Code §15610.30(c).  Undue influence in changing someone’s estate plan is also deemed elder financial abuse now.   If you are in probate court, sometimes you observe cases involving undue influence and financial elder abuse. Pay attention to the parties for more information about elder abuse in Los Angeles.

A little advance guidance and prevention can protect you from abuse by a family member, greedy adult child, and caregivers.   If you know you are vulnerable, see an attorney now!

When elders prepare to prevent elder financial abuse, they often look to instruments that are either irrevocable, or that become irrevocable with a special trigger.   A special trigger may be an outside professional visiting to determine if it is time to make the trust irrevocable.

But, sometimes, you cannot restrict particular assets.   IRA accounts are particularly vulnerable to financial elder abuse.  While a trust may protect other assets, IRA accounts are not trust assets and making a trust revocable or irrevocable does not affect the ira.   Financial institutions have recently become aware of such vulnerability, and allow for the customer to set restrictions on ira accounts, internally, so that the ira cannot be changed when there are certain conditions.   Also, they have become aware of attempts to draw large amounts of money from IRA accounts.   Beneficiary designations can be protected when the consumer makes the beneficiary designation irrevocable.  Those take lots of extra effort to implement, but certainly can be used to protect the elder’s money.

Restricting the exclusive method of amendment or revocation of the trust, as well as withdrawal of assets from the trust can be helpful in protecting senior citizens.   This requires special language in the trust to limit the right to amend, revoke or withdraw to an exclusive method, tied to the court, or another person, who is not the settlor. Probate Code §15401(a)(2); §15402. Gardenhire v. Superior Court (2005) 127 Cal.App.4th 882, 886.

Qualified Personal Residence Trust and other types of irrevocable trust can also protect the elder’s future finances.   These are complicated trusts and you should obtain advice about their consequences. Hiring an elder abuse attorney is the key to the prevention of elder abuse in Los Angeles County.

Because many times, caregivers attempt to marry the elder to overcome the presumption of undue influence, one could specifically omit transfers to a caregiver who becomes a spouse and protect the trust from the pretermitted spouse rule be effectively inserting a provision that eliminates a caregiver who becomes a spouse later.   Probate Code §21611(a) provides that a new spouse shall not take under the omitted spouse rule if the decedent intentionally failed to provide for the spouse as expressed in the testamentary instrument.

There is a cost in elder protection planning, which is a loss of all control.  Giving up some control over the assets can help the elderly hold on to their money, in situations when family or caregivers act as predators.  Talk to us about updates to elder abuse issues in 2020.

Mina Sirkin is a probate attorney in Los Angeles.  As an attorney who handles financial elder abuse asset protection planning in Los Angeles, Ms. Sirkin frequently speaks to groups regarding, regarding how to avoid greedy family members and caregivers in Los Angeles County, California.   We serve all of Los Angeles County, Woodland Hills, Glendale, Pasadena, and West Los Angeles areas. To reach us, call 818.340.4479, or

email: Info@sirkinLaw.com.

Los Angeles Probate Attorney preventing financial elder abuse in Los Angeles.

  • How to prevent financial elder abuse in Los Angeles

Attorney Advice about Conservatorships Los Angeles

As a Los Angeles client, once you meet with our skilled staff attorney and obtain advice about Los Angeles conservatorships procedure, you will be able to make a better conservatorship decision at different steps and stages of your Los Angeles parents’ lives.  Statistically, longer life expectancies may mean that you may become a caregiver for your elderly Los Angeles parent who may eventually need a Los Angeles conservatorship or asset protection.  #conservatorships #in #Los #Angeles

As time goes by, you may wonder as a child if you owe any duty of care to your elder parent in California. Below, we will discuss California law regarding conservatorships and care of elderly parents and how one would pay for such care.  To get more information about conservatorships in Los Angeles, contact Mina Sirkin at 818.340.4479.

Who is responsible for care of elderly parents in Los Angeles?

  1.  If you have started to act as your parent’s caregiver, you will be expected to act with competence.
  2.  Your parent may have greater expectations from you, than from a professional care agency.
  3.  Your siblings may think that you are inserting yourself in your parent’s life.
  4.  If you personally sign any paperwork at a facility, you may have obligated yourself to pay for your parent’s care.
  5.  If you fail to conserve your parent, are you may be deemed to be negligent.
  6.  How far will informal help go with your parents? Are your parents willing to receive help from you?
  7. In conservatorships, your parent’s care gets paid by your parent’s assets, except as provided below.
  8. Discuss physical care and financial care with your parents separately.

Unusual California law affecting the support of your elderly parents in Los Angeles:

There are some limited circumstances where the law requires an adult child to pay support for the parent, but if you become a conservator of your parent the care for your parent is paid from his or her own assets.

California even has a Family Code 4400 which states that an adult child may be required to pay for the care of the parent.

“Except as otherwise provided by law, an adult child shall, to the extent of his or her ability, support a parent who is in need and unable to maintain himself or herself by work.”

Do I have to pay to support my parents in California?

Family Code 4401 . The promise of an adult child to pay for necessaries previously furnished to a parent described in Section 4400 is binding.

Further, Family Code 4402 states: The duty of support under this part is cumulative and not in substitution for any other duty.

Who pays for support and caregiving costs in Conservatorships?

By becoming the conservator of your parent, you can protect yourself by having a conservatorship where the court supervises the actions of a conservator and where the care of your parent will be paid for from his or her own assets in a conservatorship. Your parent’s assets generally pay for the support and caregiving costs in conservatorships. If you advance costs of care in a conservatorship, you may ask the court for reimbursement at the time of your conservatorship accounting process. Ask us about the steps in conservatorships Los Angeles.

How will I pay for my parent’s care in California?

There are many ways with which care can be paid. Here are some of the examples by which elder care may be paid:

  1. Personal assets.
  2. Long Term Care insurance policies.
  3. Long Term Care Medi-Cal.
  4. Certain Types of Life Insurance cash values.

Not only the cost of care of elderly parents is an important factor in your determination, but Los Angeles Conservatorship fees and costs are also some of the important variables to consider before you start a conservatorship.  Talk to us before you file for a conservatorship in Los Angeles to avoid possible Los Angeles conservatorship litigation.

  • conservatorships los angeles

Call our attorney about advice about conservatorships in Los Angeles to consult about your rights and duties to pay for your parent’s care as a child or as a conservator, and also about the cost of conservatorships Los Angeles California. We serve the Los Angeles area with elder care services and aging care issues. Conservatorships related matters in Los Angeles. Call 818.340.4479

Has the executor stolen from the estate if he is ignoring you?

Executor is ignoring me

Los Angeles California: Sometimes during probate administration, we hear “the executor has stolen money or been ignoring me or avoiding me.” What happens if an executor has been putting you off or ignoring you for a long time? If you have ever found yourself thinking that an executor or administrator has ignored you or has been delaying the estate administration for some time, there may be several things that have gone under California inheritance law.

What can happen when you delay prosecution and the executor stole money from the estate?

Often, a beneficiary or an heir may call us and complain that an “executor has been ignoring me for a long time” and wants us to act on their case to protect their inheritance. We first have to find out if you have actually waited too long.

Absconding Executor Often Delays

When an executor absconds with assets of the estate, it is not uncommon for the executor to ignore the beneficiary and delay distribution. At times, the executor refuses to distribute the estate assets without any justification. Unfortunately, the statute of limitations on breach of fiduciary duty runs three years from the earliest date the breach could have been discovered by a reasonable person. This means that if you had been given notice of the appointment of the executor, and an opportunity to question the executor and failed to do so, the statute of limitations may have already started to run. To prevent loss you must act promptly and file the appropriate papers in probate court. If the administrator is refusing to act properly or declines to distribute the assets of the estate after an order, there is a substantial problem.

Recovery of assets from an executor has deadlines

Next, we have to evaluate whether or not we can recover assets on behalf of the estate. Once a beneficiary knows or could know of facts involving a breach, the clock has started to tick on the claim of the beneficiary. Much of recovery (prevention of further loss) from an executor or trustee revolves around the ability to freeze the assets of the estates quickly to prevent further loss. A delayed distribution can sometimes be a clue to executor theft, and it should give you cause to pause and retain an attorney.

Our advice to you about executors is that the minute you know an executor has been appointed, is avoiding you, or has delayed distributing the assets, you must get counsel to advise you of the specific deadlines that the executor must meet within his duties to you. If you see that the executor has missed a deadline, you must act quickly regardless of whether other beneficiaries or heirs will agree with you regarding the issues around the executor or administrator. An executor delay is usually a bad sign in estates and you should be aware of all activities of the executor and due dates of documents from him or her.

Talk to the skilled estate attorney at Sirkin Law about the executor’s duties to you and do not wait too long if the executor has either stolen money, ignored you or missed any deadline. Getting counsel in the first instant when you are weary of the executor, can save you thousands of dollars and protect your inheritance. Call the attorneys at Sirkin Law Group for a free estate consultation. We can answer all of your inheritance law questions at 818.340.4479.

Differences between Trusts vs. Wills: Differences in Administering Trusts vs. Wills

Wills and Trusts:

First, there are a number of differences in administering trusts v. wills in probate. Many times, people ask us about the characteristics of wills in estates and living trusts and often confuse the same.

Notification Differences:

When differentiating a will in a probate case, as opposed to a living trust, notification procedures are different but have similar goals. In a Trust administration case, there needs to be a PC 16061.7 Notice. When administering a will, PC 160601.7 does not apply. Instead, in probate of a will, every named person in the will and every heir at law get a Notice, usually by publication in a newspaper in the city or county of the Decedent’s death.

Inventory in a Trust v. a Will:

In addition, there are differences in the methods of inventorying in probate of a will, as opposed to a trust. In probating a will, a court-appointed referee needs to be appointed in the case who will evaluate the property. In a probate estate, the referee appointed by the court will appraise the assets.

Payment of Fees in Probate vs. in a Trust:

Third, the method of payment of the trustee is different than that of the payment under the supervision of the probate court. The Probate Court will supervise the amount of the fees in the probate court, but rarely in a trust matter. As you can see, these contrasts between wills and trusts can make each case vary in outcome and duration.

The jurisdiction in Administering a Trust v. Administering a Will

The general rule governing the place of administration of the trust is where the trustee conducts his or her business on a day-to-day basis. On the other hand, the jurisdiction where the will is primarily administered is the place where the decedent resided at the time of his death. So, in many situations, the place where the successor trustee may be administering the trust may be different than where the decedent died. Therefore, if there is a family conflict with the trustee, the place where the lawsuit is filed is therefore the place where the trustee administers the trust.

Do you have questions about how to administer a trust and will? To learn more about living trusts and the differences in the administration of the trusts and wills, call Mina Sirkin at 818-340-4470.

Probate Consultation Service Los Angeles

Our Los Angeles law office offers a free probate consultation as part of our probate service. During your estate consultation appointment, you will get general estate information about our probate services and guidance. We discuss all facets of legal service in probate and estates in Los Angeles California. Clients often call us at 818.340.4479 to obtain a free appointment to consult about probate, estate, wills, and trust matters to evaluate their needs in advance of making a decision. Our probate attorney is your guide to the probate court and its services.

What is a probate consultation?

At our probate consultation, we discuss the facts of your case and advise you of the steps that need to be taken in the probate matter. We can evaluate and offer various options depending on the facts of your case. The probate consultation is an informal meeting where we talk and there is no commitment by either of us to proceed with the case. The initial consultation is free and will take about an hour.

When should you get guidance or advice from a skilled probate attorney?

You should consult with our Los Angeles attorney in the following probate estate circumstances at a no-charge or free estate consultation appointment about your options and our probate services:

1.  You believe there was forgery involved regarding a Will in Probate.

2.   You believe someone influenced the decedent to write a will or trust which he or she otherwise would not have signed.

3.   There was any type of fraud involved in an estate.

4.    An executor has not filed an accounting within a year from the start of probate.

5.    Executor or Administrator has not filed an inventory.

6.    The elderly decedent was subject of elder abuse during his or her lifetime.

7.    There are assets which should belong to the estate but which someone else claims or owns.

8.    Decedent was in the middle of a sale, or transaction, and he or she died.

9.    There is sibling rivalry in the family regarding who should own the assets of a parent, or deceased person and a family member needs a free probate consultation in Los Angeles, CA.

10.  There needs to be a conservator appointed for a family member or loved one.

11.  A fiduciary, executor, administrator, trustee or agent under a power of attorney has not met his or her duties or responsibilities.

12.   Probate estate assets need to be returned to a person, estate or trust.

Find out more information about our free evaluation process of your probate estate in Los Angeles at a free initial consultation by contacting 818.340.4479.

Take advantage of a free probate information session at our free estate consultation. For information about probate in Los Angeles or for an appointment to consult with us, call or contact Probate Consultant Attorney Mina Sirkin, Probate Law Certified Specialist Attorney for a Free Probate Consultation in Los Angeles.  Call 818.340.4479  Los Angeles Probate Lawyer

free probate consultation Los Angeles
free probate consultation Los Angeles

How to Remove and Replace an Executor in Los Angeles California?: How to Remove or Replace a California Executor?

Removing or Replacing an Executor: You can remove or replace an executor in Los Angeles County California for many reasons, even in the middle of a beneficiary dispute.   Below is a list of how-to and reasons to remove and replace an executor or trustee in California.

REASONS FOR REMOVING AN EXECUTOR OR TRUSTEE:
  1.  The executor has mismanaged the assets of the estate or trust.  This means any loss to the trust or estate, or any personal profit by the executor.
  2. The executor has not accounted after an order by the court.
  3. The executor fighting with the beneficiaries and has an adverse personal interest in the estate or trust.
  4. The executor has died.
  5. The executor has become ill and cannot handle the affairs of the probate estate.
  6. The executor has stolen money from the estate.
  7. The executor has personally profited from the estate unless the will specifically allows for that.

HOW TO REMOVE AN EXECUTOR?

Changing an executor comes after an executor is removed. However, you may first suspend an executor and appoint a special administrator or interim executor, before you change an executor. Generally, if the issue is simply rendering an accounting, the beneficiary will formally request the accounting, and the executor within a reasonable amount of time (usually 60) days will account.  If that does not occur, and a court orders the executor or trustee to account, and the executor or trustee does not comply, then there is good cause to remove the executor or trustee.

The existence of “good cause” depends on the language of the will or trust.   It is commonly not permissible to remove an executor without good cause.   A prolonged illness which renders an executor or trustee unable to act, is usually good cause, as is death.   Theft and mismanagement are also good causes, but do require proof of those in court.

CAREFUL CONSIDERATION & RISKS IN REMOVING AN EXECUTOR:

If you are found not to have good cause to remove or replace an executor, the court can deem that as an indirect attack against a will or even the trust and deem it a contest, which can sometimes result in loss of a beneficiary’s rights, where there is a no contest clause.   California courts can also assess attorney’s fees and costs, where the beneficiary has acted unreasonably in contesting an accounting.

WHEN TO HIRE US TO REPLACE AN EXECUTOR OR TRUSTEE IN LOS ANGELES CALIFORNIA?

If you find that your situation meets any of the reasons to remove or replace an executor in Los Angeles, call Mina Sirkin, Board Certified Specialist in Estate Planning, Probate and Trusts in Los Angeles County, California.   We can help change the executor in your case. Call: 818-340-4479 for appointments or email: Info@SirkinLaw.com.  We can help in removing and replacing an executor in Los Angeles County, Woodland Hills, Glendale & Pasadena.

In which court do you have to file the Petition for Probate in California?: Probate Petition Los Angeles

In which court do you have to file a probate petition in California?

Generally, the jurisdiction to file a petition for probate in California is the County where the decedent lived. Jurisdictional issues come up often in probate when you are deciding in which court to file the petition for probate. We can assist you with a probate petition in Los Angeles.

Where to you Petition for Probate?

California Probate 7051.  

If the decedent was domiciled in California at the time of death, the proper county for proceedings concerning the administration of the decedent’s estate is the county in which the decedent was domiciled, regardless of where the decedent died.

Why does the Court care about the domicile rather than just where the decedent died? Many people travel or are cared for by adult family members in a different location than their hometown towards the end of their lives. Probate in California can be complex or simple. A qualified attorney can tell you about the nuances of your California Probate. California law’s goal in making sure petition for probate is filed in the county of domicile is to protect the creditors of the decedent who are entitled to notice. Our legislators want to make sure that creditors get adequate notice and they are likely to be located where the decedent was domiciled or resided, not just where he/she died.

Are there other rules that apply to where you file the Probate Petition in California?

Yes, if the decedent did not live in California at the time of his death, but decedent owned property in California, you first file probate or Petition in the County and State where he resided, then you file an ancillary petition for probate in the California County where the decedent had property.

California Probate Code 7052.  

If the decedent was not domiciled in this state at the time of death, the proper county for proceedings under this code concerning the administration of the decedent’s estate is one of the following:

(a) If property of the nondomiciliary decedent is located in the county in which the nondomiciliary decedent died, the county in which the nondomiciliary decedent died.

(b) If no property of the nondomiciliary decedent is located in the county in which the nondomiciliary decedent died or if the nondomiciliary decedent did not die in this state, any county in which property of the nondomiciliary decedent is located, regardless of where the nondomiciliary decedent died. If property of the nondomiciliary decedent is located in more than one county, the proper county is the county in which a petition for ancillary administration is first filed, and the court in that county has jurisdiction of the administration of the estate.

FILE PROBATE: We have helped thousands of families with probate petition matters in Los Angeles. To discuss the Court in which to file a Petition for Probate, or if you are an out-of-state attorney or family member with a California Probate question, call or contact Mina Sirkin about Los Angeles California Probate questions at 818.340.4479 or email Info@SirkinLaw.com