Author: Probate Attorney

Many people think that they can manage a conservatorship case by themselves. There are some conservator errors that can result in damage and can be actionable by the court and by others who are interested. There are some conservator errors that are fixable. Here are some of the common errors that conservatorship must watch for as noted by Los Angeles County conservators:

1. Failing to post a bond when the court requires the conservator to post one. This will result in non-issuance of the Order Appointing the Conservator, and the case will go into limbo.
2. Failing to get Letters issued. When the order is issued, it must be followed by the issuance of Letters, which is the document which actually authorizes the conservator to act. No Letters means no authority.
3. Failing to timely marshall the assets and take possession of them. This can create a loss if someone influences the conservatee to give away his or her assets, and the conservator has not changed the account name to the name of the conservatorship estate.
4. Failing to purchase insurance and to pay for taxes. Property insurance, fire, and liability protect estates. Don’t forget them.
5. Missing the deadline for filing an accounting in court can result in the removal of the conservator. Don’t miss it. Our lawyers protect conservators from making costly mistakes in conservatorships in Los Angeles and the San Fernando Valley. Our office in Woodland Hills can help conservators with the necessary advice to keep on top of their conservatorship jobs. Call or contact 818.340.4479 for all of your conservatorship or elder questions and if you are acting as a Los Angeles county conservator or conservators.

Special Needs Trust Attorney Woodland Hills, Mina Sirkin discusses the differences in Special Needs Trust for Woodland Hills California residents.

The type of special needs trust you create depends on the circumstances and the goals involved:

1. Special Needs Trust for Inheritance Pre-Death Planning.
2. Special Needs Trust for Inheritance Post-Death Planning.
3. Special Needs Trust for Persons over 65 years of age.
4. Special Needs Trust for Personal Injury and Other Litigation matters.

A. If a parent wants to create a special needs trust for the benefit of a child with a disability with the parents’ money, this type of trust is usually a third party trust.

B. If a child has inherited an asset of a parent, and the parent did not create a special needs trust, the type of trust to be created by the conservator or the child (if competent) is a first party trust, so long as the child is under 65 years of age.

C. Pooled Trusts can be very good alternatives for Woodland Hills residents where the inheritance has already come in and the beneficiary is over 65 years of age, or where there is not a suitable individual to manage the assets.

D. Court created trusts are normally for persons under 65 years of age and are generally first party trusts, both for inheritances and for personal injury settlement proceeds or judgments.

If you live in Woodland Hills or in the West San Fernando Valley, call Mina Sirkin, Special Needs Trust Lawyer to assist you with help in our Woodland Hills Office. Call 818.340.4479. To discuss special needs trusts or to have a free conservatorship evaluation, please call us. Our Woodland Hills Law Office serves Special Needs Trust families in Woodland Hills, West Hills, Canoga Park, Winnetka, Tarzana and Calabasas.

When it comes down to being before a Los Angeles Probate Court judge, there are always questions of whether the probate executor has greater rights, or the probate beneficiary. The answer to that question depends on the facts, but here are some examples.

1. Can a beneficiary live in the probate estate property without paying rent? If the will authorizes the beneficiary to live there rent-free, then the beneficiary can do that. If there is no will, the probate executor has the duty to make the property income-producing, which means the beneficiary who exclusively occupies the property, must pay rent. Sometimes, this can be worked out between the beneficiary and the executor, where the beneficiary’s rent can come out of his ultimate share of the estate. Talk to our probate attorney for any matter relating to a beneficiary’s rights in Los Angeles.
2. Can a probate executor sell the property of the estate without a beneficiary’s consent? A probate executor who wants to sell the property of the estate can send a notice of proposed action to see if beneficiaries will consent. If they do not, the probate executor must sell the property with court confirmation. The beneficiaries can come to court to tell the judge why the property should not be sold. The probate judge then makes a decision regarding that matter.

Are you concerned about an executor of an estate or the actions of the executor? Call Mina Sirkin, attorney who helps beneficiaries determine their rights against executors. Call 818.340.4479 or email us [email protected].

As an attorney representing a probate beneficiary in Los Angeles, effective monitoring the management of a probate estate in Los Angeles involves obtaining a complete picture of the probate estate for the probate beneficiary in Los Angeles. Probate beneficiaries have rights in California. Los Angeles Probate Court also has local rules regarding the treatment and handling of a probate beneficiary.

In Los Angeles, the Probate Court has its internal attorneys who review documents and product probate notes. Probate Notes in Los Angeles are the Court’s way of asking more information from the party who has filed a probate petition or probate objection.

Your job as a beneficiary of an estate, and the job of your estate attorney is to watch for all deadlines to make sure administrator has filed the required documents, such as an accounting or inventory in a timely way. Things go wrong when the executor has failed to inventory. Slow action by an executor to take over the assets of the estate poses a risk of loss to the estate.

If no accounting has been filed a year from the date of Letters of Administration or Letters (probate), then there is either negligence, malfeasance or some legitimate reason why there is a delay. Your estate counsel should find out the reason and notify you of the next step or next action to take to protect your beneficial rights.

Always check to see if there was a prior conservatorship in place. That can impact the estate and the assets.

Call estate attorney, Mina Sirkin to protect your beneficiary rights as a probate beneficiary in Los Angeles. Call 818.340.4479 or email us here. #ProbateLaweyr #Probate #Lawyer #LosAngelesProbateLawyer #Estate #Beneficiary

Fiduciary law is the practice of representing and consulting with trustees, executors, administrators, conservators, all of whom are considered fiduciaries in California and in Los Angeles. Fiduciary obligations are duties which are not to be taken lightly if you are appointed to one of the above offices. Get help about your fiduciary duties and stay protected from a claim for breach of fiduciary duty.

Why is Fiduciary Law Important?

Fiduciary law is important because the concepts of acting as a fiduciary are not normally known to the public and errors by fiduciaries can result in great damage to beneficiaries. The basic premise of fiduciary duties is that the fiduciary has the duty of loyalty, which in simple words, means that he or she must put the interests of his or her beneficiary ahead of his own interests.

What are some of the examples of things that can be expected of fiduciaries in California?

A fiduciary is expected to act as a neutral.

A fiduciary is expected not to engage in a fight with a beneficiary, subject to a change by a court order. If a beneficiary is acting to the detriment of the trust, the fiduciary or trustee may request court instructions as to how he should handle that beneficiary.

A fiduciary is expected to benefit the trust or estate.

When a person is both a fiduciary and a beneficiary of a trust or will in California, he must ensure that his own interests come second to that of other beneficiaries. For example, if a trustee wants to buy the property of the estate or trust, he or she must pay a better price than all other bidders of that property.

A fiduciary must be sure to carry insurance on the trust property to protect the estate.

As a beneficiary, you may request the trustee or fiduciary to provide information regarding insurance on the property and may converse with the trustee regarding the adequacy.

A fiduciary in California must act as a prudent investor to protect the assets of the estate or trust.

While the trust may except a trustee from staying within the prudent investor rules, and the court may modify the rule by instruction, the trustee must see to it that the portfolio is diverse and not subject to great investment risk.

Talk to Mina Sirkin, an expert in Fiduciary Law in Los Angeles California about your questions. Call 818.340.4479 or email.

California probate law allows a person who makes a will to dispose of some personal property by a separate writing outside of a will. However, persons who make wills should be cautioned against it for the reasons stated in this article.

Here is the California law relating to the disposition of assets with a reference to the will: PROBATE CODE – PROB

DIVISION 6. WILLS AND INTESTATE SUCCESSION [6100 – 6806](

CHAPTER 4. Reference to Matters Outside the Will [6130 – 6132]

PART 1. WILLS [6100 – 6390](

6130.

A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.(Enacted by Stats. 1990, Ch. 79.)

6131.

A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether the acts and events occur before or after the execution of the will or before or after the testator’s death. The execution or revocation of a will of another person is such an event.

6132.

(a) Notwithstanding any other provision, a will may refer to a writing that directs disposition of tangible personal property not otherwise specifically disposed of by the will, except for money that is common coin or currency and property used primarily in a trade or business. A writing directing disposition of a testator’s tangible personal property is effective if all of the following conditions are satisfied:

(1) An unrevoked will refers to the writing.

(2) The writing is dated and is either in the handwriting of, or signed by, the testator.

(3) The writing describes the items and the recipients of the property with reasonable certainty.

(b) The failure of a writing to conform to the conditions described in paragraph (2) of subdivision (a) does not preclude the introduction of evidence of the existence of the testator’s intent regarding the disposition of tangible personal property as authorized by this section.

(c) The writing may be written or signed before or after the execution of the will and need not have significance apart from its effect upon the dispositions of property made by the will. A writing that meets the requirements of this section shall be given effect as if it were actually contained in the will itself, except that if any person designated to receive property in the writing dies before the testator, the property shall pass as further directed in the writing and, in the absence of any further directions, the disposition shall lapse.

(d) The testator may make subsequent handwritten or signed changes to any writing. If there is an inconsistent disposition of tangible personal property as between writings, the most recent writing controls.

(e) (1) If the writing directing disposition of tangible personal property omits a statement as to the date of its execution, and if the omission results in doubt whether its provisions or the provisions of another writing inconsistent with it are controlling, then the writing omitting the statement is invalid to the extent of its inconsistency unless the time of its execution is established to be after the date of execution of the other writing.

(2) If the writing directing disposition of tangible personal property omits a statement as to the date of its execution, and it is established that the testator lacked testamentary capacity at any time during which the writing may have been executed, the writing is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.

(f) (1) Concurrent with the filing of the inventory and appraisal required by Section 8800, the personal representative shall also file the writing that directs disposition of the testator’s tangible personal property.

(2) Notwithstanding paragraph (1), if the writing has not been found or is not available at the time of the filing of the inventory and appraisal, the personal representative shall file the writing no later than 60 days prior to filing the petition for final distribution pursuant to Section 11640.

(g) The total value of tangible personal property identified and disposed of in the writing shall not exceed twenty-five thousand dollars ($25,000). If the value of an item of tangible personal property described in the writing exceeds five thousand dollars ($5,000), that item shall not be subject to this section and that item shall be disposed of pursuant to the remainder clause of the will. The value of an item of tangible personal property that is disposed of pursuant to the remainder clause of the will shall not be counted towards the twenty-five thousand dollar ($25,000) limit described in this subdivision.

(h) As used in this section, the following definitions shall apply:

(1) “Tangible personal property” means articles of personal or household use or ornament, including, but not limited to, furniture, furnishings, automobiles, boats, and jewelry, as well as precious metals in any tangible form, such as bullion or coins and articles held for investment purposes. The term “tangible personal property” does not mean real property, a mobilehome as defined in Section 798.3 of the Civil Code, intangible property, such as evidences of indebtedness, bank accounts and other monetary deposits, documents of title, or securities.

(2) “Common coin or currency” means the coins and currency of the United States that are legal tender for the payment of public and private debts, but does not include coins or currency kept or acquired for their historical, artistic, collectable, or investment value apart from their normal use as legal tender for payment.

Here are the reasons why you should always do a codicil to add specific personal property gifts in California:

A. A separate writing creates too much room for error by the maker of the will.

B. A separate writing leaves too much room for another person to unduly influence the maker of the will.

C. A separate writing is limited to personal property gifts and cannot have an aggregate value of $25,000.

D. Your executor has to attach the writing to his or her inventory during probate.

E. If you are incapacitated when writing it, it may invalidate those gifts.

If you want to leave specific assets to loved ones, see an attorney for wills in California and make a new will or a codicil to your old will, adding specific gifts to avoid the above problems. Call Mina Sirkin, Wills and Intestacy attorney in Los Angeles California at 818.340.4479. Email us here.

ARTICLE 2. Proof of Will 8220 – 8226

8220.

Unless there is a contest of a will:

(a) The will may be proved on the evidence of one of the subscribing witnesses only, if the evidence shows that the will was executed in all particulars as prescribed by law.

(b) Evidence of execution of a will may be received by an affidavit of a subscribing witness to which there is attached a photographic copy of the will, or by an affidavit in the original will that includes or incorporates the attestation clause.

(c) If no subscribing witness resides in the county, but the deposition of a witness can be taken elsewhere, the court may direct the deposition to be taken. On the examination, the court may authorize a photographic copy of the will to be made and presented to the witness, and the witness may be asked the same questions with respect to the photographic copy as if the original will were present.

(Enacted by Stats. 1990, Ch. 79.)

8221.

If no subscribing witness is available as a witness within the meaning of Section 240 of the Evidence Code, the court may, if the will on its face conforms to all requirements of law, permit proof of the will by proof of the handwriting of the testator and one of the following:

(a) Proof of the handwriting of any one subscribing witness.

(b) Receipt in evidence of one of the following documents reciting facts showing due execution of the will:

(1) A writing in the will bearing the signatures of all subscribing witnesses.

(2) An affidavit of a person with personal knowledge of the circumstances of the execution.

(Enacted by Stats. 1990, Ch. 79.)

8222.

A holographic will may be proved in the same manner as other writings.

(Enacted by Stats. 1990, Ch. 79.)

8223.

The petition for probate of a lost or destroyed will shall include a written statement of the testamentary words or their substance. If the will is proved, the provisions of the will shall be set forth in the order admitting the will to probate.

(Enacted by Stats. 1990, Ch. 79.)

8224.

The testimony of each witness in a proceeding concerning the execution or provisions of a will, the testamentary capacity of the decedent, and other issues of fact, may be reduced to writing, signed by the witness, and filed, whether or not the will is contested. The testimony so preserved, or an official reporter’s transcript of the testimony, is admissible in evidence in any subsequent proceeding concerning the will if the witness has become unavailable as a witness within the meaning of Section 240 of the Evidence Code.

(Enacted by Stats. 1990, Ch. 79.)

8225.

When the court admits a will to probate, that fact shall be recorded in the minutes by the clerk and the will shall be filed.

(Enacted by Stats. 1990, Ch. 79.)

8226.

(a) If no person contests the validity of a will or petitions for revocation of probate of the will within the time provided in this chapter, admission of the will to probate is conclusive, subject to Section 8007.

(b) Subject to subdivision (c), a will may be admitted to probate notwithstanding prior admission to probate of another will or prior distribution of property in the proceeding. The will may not affect property previously distributed, but the court may determine how any provision of the will affects property not yet distributed and how any provision of the will affects provisions of another will.

(c) If the proponent of a will has received notice of a petition for probate or a petition for letters of administration for a general personal representative, the proponent of the will may petition for probate of the will only within the later of either of the following time periods:

(1) One hundred twenty days after issuance of the order admitting the first will to probate or determining the decedent to be intestate.

(2) Sixty days after the proponent of the will first obtains knowledge of the will.

(Amended by Stats. 1997, Ch. 724, Sec. 19. Effective January 1, 1998.)

Probate Code §8223 allow a lost or destroyed will to be proven. It requires the petition for the probate of a lost or destroyed will and a summary or short version of the testamentary provisions. In many cases, the lost or destroyed will can be admitted in probate.

Prob C §6124 establishes a presumption concerning lost wills. It provides:

If the testator’s will was last in the testator’s possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator’s death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence.

An example of a lost will admitted is where the will was in a safe deposit box and the bank no longer exists or has records of the box. Same is true, if the will was lost in transit to the executor or other entity.

The presumption only applies if there is a will contest and affects the burden of producing evidence. See Evid C §601 and Prob C §6124. See Estate of Moramarco (1948) 86 CA2d 326. See also Estate of Trikha (2013) 219 CA4th 791. Under Prob C §8000(b), a petition for probate of the decedent’s will may be made regardless of whether the will is in the petitioner’s possession or is lost, destroyed, or beyond the jurisdiction of the state.

A photocopy of a will is not a duplicate original for purposes of Prob C §6124; thus, the presumption of revocation applies. Lauermann v Superior Court (2005) 127 CA4th 1327. A lost will (i.e., a copy that is not a “duplicate original”) must be proven in the same manner as any other will.

The Petition for Probate (Judicial Council Form DE-111) (see §7.49) now includes a set of items to complete if the will has been lost or destroyed. These include:

For more information about lost wills in California Call Sirkin Law Group, Will Lawyers in Los Angeles at 818.340.4479 or email [email protected].

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. 

A 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.  [email protected].

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 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 has attorneys that help 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, grandparent 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, CPAs and attorneys. 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 parents differs from estate planning for parents with young children. Ask us to help you and your parents in planning for their 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 [email protected].