Romeo Vitelli wrote a very interesting article called Exploding the Myths about Aging in Psychology Today dated June 1, 2020. It had may interesting points about aging, how people view aging, and how some of the symptoms of aging can be reversed.
I have posted it here with my highlights so you can also enjoy it:
A beneficiary designation or beneficiary change to accounts can certainly thwart your estate plan as described by attorney Mina Sirkin below.:
Here are several ways a beneficiary designation can change your entire estate plan which you need to be aware of when you are thinking of a beneficiary change or designation.
A beneficiary designation can make your estate distribution unequal.
A beneficiary designation can leave assets to someone who is on public benefits and make them lose their benefits.
A beneficiary designation has priority over the will with regards to that particular account.
A person can be manipulated or influenced to change his or her beneficiary designation.
Your designated beneficiary’s spouse will try to control how the beneficiary spends that money. We can help protect your beneficiary in spending habits and in a potential divorce. Ask us.
A beneficiary designation form is not always accepted by the financial institution, bank or life insurance company.
If you fail to update your beneficiary designations, to be consistent with your estate planning intentions, your beneficiaries will feel bad about each other.
If you forget to update your beneficiary designations after a divorce, certain 401K accounts will go to your ex-spouse, despite your intentions. This article also applies to trusts whether or not they are administered by family or professional. A beneficiary alteration can also have an adverse tax impact when it comes to IRA accounts and 401k accounts because only a spouse can continue to defer the tax with a rollover IRA. Other beneficiaries have to pay the tax under the CARES Act.
When a trustee of a trust makes a mistake or error, the ramifications can be great for not only the trustee of the trust but for the beneficiaries and the trust itself. In this article, we explore some of the trustee errors that lead to trust litigation in Los Angeles. Our lawyers can assist you in fiduciary law matters in Los Angeles.
First, you have to ask yourself some questions: What is the main function of a trustee of a trust? The trustee’s main function is to protect the assets of the trust and to make them income-producing for the benefit of the beneficiaries of the trust. Who is a beneficiary of a trust? A beneficiary of a trust is a person who has a right to income or principal of the trust under the terms of the trust.
Top eleven trust management mistakes by trustees of trusts can be categorized in many different ways, but some of them are below:
Mixing the assets of the trust with the trustee’s personal assets.
Not keeping separate books and records of the trust transactions.
Overpaying one beneficiary over other beneficiaries.
Favoring one’s own benefits in the trust over the interests of the beneficiaries.
Overpaying trustee’s fees in Los Angeles.
Not having a diverse portfolio of assets under the Prudent Investor Rule.
Not accounting to the beneficiaries.
Borrowing from the trust for your personal gain where the trust language prohibits profiting from the trust or where the trust is silent about it.
Not getting legal advice from an expert family trust lawyer.
Relying on others to manage the trust tasks that cannot be delegated.
When you are a trustee of a trust or multiple trusts, you must take action and get advice early in trust administration so that you do not make these common trust mistakes. As a trustee or successor trustee, you are the manager of the trust with tremendous responsibilities.
There are many other errors that can also impact the trust estate distribution:
1. Failing to send the required notification to beneficiaries, heirs and government entities.
2. Making a distribution to early.
3. Not having a Trust Administration plan and timeline.
4. Failing to timely inventory and appraise all the assets of the trust, and failing to inquire about non-trust assets.
5. Failing to make the proper tax allocations and tax elections.
6. Making personal use of trust assets.
7. Failing to prepare early for estate taxes.
8. Failing to keep beneficiaries informed.
9. Failing to keep a trustee’s notebook, and failing to timely account to the beneficiaries.
What happens if you make a mistake as a trustee of a trust?
The Court can issue a judgment against you called a surcharge judgment which can range from reducing your trustee’s fees to outright issuing an order to disgorge profits, money damages against the trustee, and even attorneys fees and costs.
Are there things you can do to save the trust from damage?
If your trustee has made an error, there may be a number of strategies that he or she can employ to fix it, or to prevent damage, or reverse damage. That requires advice from a skilled trustee’s lawyer to implement such remediating steps.
Call Mina Sirkin when you are a trustee or successor trustee looking to find a trust lawyer to avoid mistakes and help you with administration or management of the trust, get solid advice about trust management and administration from our expert with over 27 years of experience in family trusts. We help trustees avoid expensive errors.
California has two tiers of executor compensation for Los Angeles executors who are named in a will. Let us explore executor fees in Los Angeles Ca. Probate Executors and Probate Administrators are paid the same based on the following two estate fee categories.
Tier 1: Statutory Compensation or Statutory Fees for Executors in California
When calculating fees, Statutory Fees are calculated based on a chart and a formula. The formula for statutory fees in California is rather simple.
PROBATESTATUTORY FEE FORMULA: Inventory + Receipts + Capital Gains – Capital Losses. = The number which you will look up in the chart as the base for statutory fees.
Probate Statutory Fee Calculator: The short sample of the California Statutory Executor Fee Chart or Probate Fee Chart is below: You can find the Statutory Fee Chart here:
APPROXIMATE GROSS ESTATE SIZE
ORDINARY PROBATE FEE IN LOS ANGELES CALIFORNIA
California Statutory Executor Fees
The statutory fee generally covers the filing of the initial petition for probate, inventory, notice to creditors and the final distribution. If there are difficulties in collecting the assets, or any litigation involved, the fees will increase and extra-ordinary fees will be added to the California Statutory Fees.
Tier 2: Extra-Ordinary Executor Fees in California
Each County in California has a range of hourly rates for executors which they deem as reasonable in the community for family executors and professional executors. We have seen these range from $30-$150 per hour for executor extra-ordinary compensation. #executorfees
How do you know if a task is extra-ordinary?
The Extra-Ordinary fees generally cover sales of real estate, taxes, litigation, and any extra-ordinary efforts to marshal assets. Ask us about specific items.
In this 2020 case, the Court of Appeal in California affirmed an award of elder abuse attorney fees as remedies without any physical injury, where the jury found that Medico was liable for the misappropriation of Miller’s property, that its conduct was “a substantial factor in causing harm” to Miller, and that plaintiff proved “by clear and convincing evidence that Medico” acted with “recklessness, malice, oppression or fraud.” Under the plain language of the statute, an award of attorney fees is a mandatory form of relief regardless of whether the plaintiff is awarded any other form of relief.
California Welfare and Institutions Code 15657.5, subdivision (a), states that “[w]here it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney’s fees and costs.” (§ 15657.5, subd. (a), italics added.
The Court found that Medico Investments must pay attorneys’s fees in this Elder Abuse case.
UPDATE 5-7-20: The California Department of Motor Vehicles announced in press releases on April 1 and April 14 that driver’s license expirations dates would be extended in California for the following individuals:
Seniors 70 years of age and older whose noncommercial driver’s licenses expire between March 1, 2020, and May 31, 2020, are given a 120-day extension to their driver’s licenses expiration date. The DMV will mail affected seniors a paper extension.
Californians under 70 who driver’s licenses expire between March 2020 and May 2020 will have their license expiration date extended to May 31, 2020. These drivers also have the option to request a free temporary paper extension online through the DMV’s Virtual Field Office to document extension.
Elder Law Burbank Ca: Caring for your family at different stages of life is the largest part of the practice of Elder Law serving the Burbank elder and probate community. Elder Law attorneys, we often counsel clients in multi-disciplinary legal areas including but not limited to elder abuse and probate. Our attorneys provide service to Burbank residents with all areas o elder law including the following areas of law:
Estate Planning (Wills and Trusts): Our Elder Law & Estate Planning practice focus of preparing a plan of action for management of assets during incapacity and for distribution of the assets at death for residents in Burbank and Hollywood Hills.
Preparation of Power of Attorney Documents: Power of attorney documents are created as means to assist in decision by appointing an agent to make decisions for the principal.
Preparation of Advance Heath Care Directives: When it is time for making health care decisions, this document serves as a statement of your authority to allow someone else to make health care decisions for you when you are no longer able to do so yourself.
Trust Administration: After a person dies (of even when he/she is incapacitated), the assets in a trust need to be managed and then distributed upon death. This process is called trust administration.
Probate Administration: When there is no trust, or when a trust is not funded, this court process allows for distribution of assets at death and admission of the will in court.
Conservatorships & Elder Law: Conservatorships are protective proceedings where an adult requests powers from the court to care for another adult. A Los Angeles Conservatorship is a complex process that requires expert advice.
Medi-Cal Planning and Asset Protection: We assist clients in obtaining Medi-Cal benefits and create strategies for asset protection for our clients to retain their most valued possessions.
Financial Elder Abuse Law: Since 1993, our lawyers have helped thousands of people protect themselves against Financial Elder Abuse. Abuse of elders is unfortunately very common and many times connected to a probate estate by litigation. We help recover assets of elderly in probate and civil court where the assets have been taken by another person, or used for a wrongful purpose. Financial abuse of elders is also often litigated in estates and wills contests.
LIVING TRUST ATTORNEY LOS ANGELES – SIRKIN LAW GROUP, PC is a Los Angeles County law firm dedicated to family estate planning and living trust preparation. Our living trust attorneys focus on creating strategies and documents that protect your family before a crisis happens. With a skilled Board Certified Specialist in house, our caring living trust lawyers in Los Angeles are ready to help you in getting your affairs in order so you can continue to provide for your family without fear.
Family Protection Before A Crisis
What crisis? A crisis in a family can occur when one or more parents become ill or pass away, leaving behind your people whose lives depend on the parents. Incapacity is the primary reason why a parent cannot continue to take care of a child. Death is only the second reason for a child being left without resources.
Our clients contact the living trust attorney in Los Angeles, throughout Los Angeles County, Ventura County or the San Fernando Valley, and benefit from a free consultation by calling 818-340-4479 or using our email here to schedule a free initial consultation. Phone: 818-340-4479. We offer virtual and online appointments during the Stay-At-Home orders. Stay safe.
Family Protection after a Crisis
With a living trust, after there is a crisis, there is a structure that your family can depend on for easy access to the assets. If a husband and wife have formed a living trust, the access to the community assets should be instantaneous if the assets are in trust or jointly held. Talk to our living trust attorney to find out the tax benefits of holding community property assets in the trust.
Strategies and Tools: Living Trust Documents & Funds
When you combine a living trust and life insurance, you create a tool to care for a minor and the necessary financial resource for someone to pay for the care of your young children. Our living trust lawyers are guides to families who need to take care of younger children, as well as elderly parents and grandparents who wish to put their affairs in order.
Advantages of a Living Trust
The most well-known advantage of a living trust is that it avoids probate for the assets which you place in it. But there are greater advantages that just probate avoidance. Living Trusts when properly funded will also avoid a conservatorship for the assets that are placed in them when the case is uncontested. So, another benefit of the Los Angeles Living Trust attorney is that he or she can guide you to not only protect yourself in incapacity but also to protect your loved ones, should you die. For young families, the role of a living trust attorney is not just as a guide, but as a trusted advisor who can help you plan your children’s future.
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 (activities of daily living) 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.
Probate Code 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.
AND PROCEDURAL HISTORY
David L. Sachs had two
children, Benita and Avram. 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
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.
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
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
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.)
The judgment (order granting
petition for instructions) is affirmed.
Benita shall recover her costs on appeal.
CERTIFIED FOR PUBLICATION.
GILBERT, P. 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.
further statutory references are to the Probate Code unless otherwise
 We refer
to all parties by their first name for ease of identification. No disrespect is intended.