Author: Probate Attorney

What opportunities does estate planning unveil for your family?

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

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

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

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

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

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

When a couple creates a revocable trust with an A/B designation, when the first spouse passes away, the remaining spouse usually remains as trustee. While in most cases, this works out well, there are times when becoming the trustee of two trusts can be problematic. Lets say you are the beneficiary of one trust, and there are also beneficiaries of the other trusts, where you are a trustee. Conflicts of interest can lurk out there without you knowing it, which can pose issues for you as a trustee.

When to avoid becoming a trustee of two trusts?

Lets say you are a surviving wife in an A/B Trust situation, and your deceased husband left gifts of specific property to his children from his first marriage. Years go by, you complete the allocation, and then you decide that you want to sell one of the properties which were specifically designated as a specific gift. Because, now, you are a trustee, you must notify the beneficiaries of the B Trust that you propose or plan to sell that property.

When you want to benefit from the trust, but are the trustee, you should not act as a trustee. This may seem difficult if you are a trustor, but it may protect you from lawsuits by beneficiaries, especially those from other marriages. Remember that children of the first marriage, generally do not have any mercy for the second wife or husband.

But more importantly, you may have a conflict of interest, if you try to sell the property to yourself if you don’t meet certain requirements. Your sale must be fair and reasonable to the beneficiaries.

As a trustee, if you want to sell the property to yourself, you must insure that the sale is fair and reasonable to the beneficiaries. You cannot benefit from the transaction. This means, you as a trustee cannot personally benefit from it. This type of transaction is a slippery slope and are generally advised against. In addition, you must give notice of all important or material facts about the terms of the sale to the beneficiaries. For example, if the property has a foundation defect, and you which to be credited for it, you must disclose the defect to the beneficiaries, and to tell them how much, if any credit you seek.

If you are a trustee in Woodland Hills, or a trustee in Los Angeles and are contemplating selling a specific property, or have questions about your dual role as a trustee, feel free call us to consult with a resourceful trust attorney to help you meet the above fairness and disclosure requirements.

By: Mina Sirkin, Trust attorney in Woodland Hills, Los Angeles County, California who is a Board Certified Specialist expert in Estate Planning and Trust Law, whose expertise is to advise trustees about their roles under California trust law. Call 818.340.4479

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

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

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

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

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

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

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

Durable v.  Non-Durable Power of Attorney

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

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

How can you restrict a power of attorney?

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

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

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

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

A Two Speed Gear System for Conservatorship Exists:

A Regular Conservatorship also called a permanent conservatorship is the first gear, where there are no emergencies and you can move at the speed of the court, which these days takes about 70 days to set the first hearing.    This means that you may have a disabled person, but you are giving informal help or him or her.   [UPDATED May 2020] **During COVID-19, the Court’s are not setting permanent conservatorships until September of 2020, however, all emergency temporary conservatorships are being heard daily, and very fast. Read below.

Temporary Conservatorship in Los Angeles

A Fast speed conservatorship is the second gear, called a Temporary Conservatorship where there is an emergency and you must obtain quick authority to act for the disabled person.  Examples of this may be that someone is in the hospital, and decisions must be made, where the hospital requires a decision-maker, but no one has a health care power of attorney or an Advance Health Care Directive for the disabled individual.   Surgeries or other circumstances may dictate that someone make the decision, other than the disabled individual.  On average, it takes about 1-5 days to obtain a fast speed or temporary conservatorship in Los Angeles County.  The circumstances govern if the court is inclined to act on your facts which are stated in a Declaration in support of the Conservatorship. [UPDATED May 2020] ***During the time of COVID-19 orders, our conservatorship attorneys are successfully processing Temporary Emergency Conservatorship in Los Angeles and getting Letters of Conservatorship issued where there is risk to the conservatee.

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

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

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

Because it is very difficult to get an LPS conservatorship in Los Angeles, California, parents of mentally ill persons should consider alternatives to conservatorships when the occasion allows for the exercise of the alternatives.

What are your goals?

If your goals are to be able to give medical help to your child when a psychiatric episode arises, your goal must include the necessary documents to give him or her the help he needs.   Those documents are 1) Durable Power of Attorney for Health Care with specific mental health provisions, and 2)  HIPAA release specifically made for psychiatric illnesses.

When should you obtain these documents?

The document must be obtained when the mentally ill patient has sufficient capacity to execute them, and not during an episode.   So, as soon as the episode is over, you should encourage him/her to sign those two documents.

Can a Power of Attorney give you the right to medicate a person against his or her will?

Not in California.   However, a Durable Power of Attorney allows the principal to indicate his or her wishes to receive all medication, including psychiatric medication, when he or she is incapacitated.   You should make sure that it is signed in front of a notary, or two unrelated witnesses.

Can a Power of Attorney give you the right to place a person in a locked facility against his or her will?

Not in California.  However, a Durable Power of Attorney can authorize you to select any type of temporary or permanent housing for the incapacitated person, if the language sufficiently describes secured perimeter homes, hospitals, group homes, rehabilitation facilities, gated communities, assisted living locations, skilled nursing facilities, or other locations suitable for the incapacitated person. A health care directive can sometimes avoid conservatorships, but not always.

Call us to discuss your family member’s specific needs, if you have a mentally challenged or mentally ill family member who needs assistance.    Call 818.340.4479 or email us at [email protected]

Every adult in California is presumed to be competent and capable of making his or her own decisions unless a court determines otherwise, either in a conservatorship or in a Guardian Ad Litem appointment proceeding. If a person becomes incapable of making good decisions for his or her own benefit, due to a mental disability or mental incapacity, the court will appoint a substitute decision-maker, often called a “conservator” and in certain legal cases, a “guardian ad litem.”

Conservatorships are legal decision-maker relationships between a competent adult (the “conservator”) and a person who because of incapacity is no longer able to take care of his or her own affairs (the “conservatee”).

When a Guardian Ad Litem is appointed to make legal decisions on case-specific matters, the disabled person is referred to as a “ward.”    Sometimes, there is a  Guardian Ad Litem at the same time as the conservator, but the court determines who has priority in decision-making.  Usually, a Guardian Ad Litems’ orders are limited to certain cases, and are not broad.

The Conservator can be authorized to make legal, financial, and health care decisions for the disabled person or conservatee. Depending on the order for conservatorship and the state’s local practices, the conservator may or may not have to seek court approval for various decisions.

To talk to us about the presumption of capacity in Los Angeles County, call Conservatorships attorney, Mina Sirkin at 818.340.4479.

As many of you may know, Stan Lee (Nee Stanley Martin Lieber) was best known for his creations of such superheroes as Spider-man, the Incredible Hulk, and Black Panther, along with the Marvel Universe.   Lee died on November 12, 2018, at the age of 95.  He had survived his wife Joan B. Lee who died in 2017.   Stan had one child, Joan C. Lee.

In a long declaration signed by Stan Lee in February of 2018, Lee wrote much of the history of his dealings with his daughter.   Stan was very disturbed by the fact that his daughter who is now 68 years old, had no job and continued to make financial demands of him, when time and time again, he had told her that he did not want to relinquish his assets to her.   He wrote the declaration in the context of facts that were preserved for a conservatorship, and later, in the event of a trust contest.

He noted signs of abuse in his declaration:

1. Demands for execution of Grant Deeds from father to daughter.
2. Daughter yelled and screamed at him if he did not capitulate to her demands.
3. Daughter cried hysterically when she was ineffective after screaming at him.
4. She has never had the ability to manage money.
5. She demanded that her lawyers review and comment on Stan’s Trust.

Stan instructed his lawyer to create an irrevocable trust to meet his goals which were two-fold: 1) his daughter would never. Be homeless; and 2) so that his properties would not be sold, but if sold, would be available to produce some rental income for the daughter.  Historically, Stan and his wife had mistakenly provided between $20,000 – $40,000 per month to their daughter, whose appetite for cash could not be quenched.

Incidents of financial elder abuse are becoming very common among the aging population in Los Angeles County and can be prevented through a conservatorship.  The moral of the story is to recognize the signs that your family member may becoming abusive and want to take control of your life and your money.   To discuss your financial affairs with an elder law attorney who is experienced in family matters involving financial and estate planning for children who are unable to manage funds, call attorney Mina Sirkin at 818.340.4479 or email:  [email protected].

By: Mina N. Sirkin, California Board Certified Specialist in Probate, Estate Planning and Trust Law located in Los Angeles County.

What happens to old Guardianships of the Estate in California after kids reach 18 years of age?

If you were appointed as Guardian of the Estate of a minor many years ago and he or she has now reached 18 years of age or is perhaps over 18, there are several things you should do.

1. Do a final accounting or get a waiver of the accounting from the ward (if competent).
2. Prepare a Petition to Terminate the Guardianship.
3. After the court orders the Guardianship terminated, you need to transfer all the assets to the child, who is now an adult.
4. File receipts with the court.
5. Get a discharge.

What happens if your child has turned 18 and was under a guardianship, but is not competent now to handle the funds?

Then, you must file to become the conservator of the estate of your child.   A conservatorship is the adult version of the guardianship.

Why you should not wait to end the Guardianship of the estate:   As time goes by, records get lost, and it becomes exponentially more difficult to gather all bank records to complete the accounting if an accounting cannot be waived.   Not being able to account subjects you to a surcharge and recovery on your bond.   As soon as your child turns 18, you should file a petition to terminate the guardianship of the estate.

Our estate lawyers can help you terminate guardianships of the estate and create and establish conservatorships of the estate.  In Los Angeles County and San Fernando Valley, call attorney Mina Sirkin for Guardianship advice at 818.340.4479 or email us here.

Many problems may arise in a conservatorship which may baffle the individual who is acting as a conservator of estates or persons in Los Angeles, California for aging people with advanced dementia or other diseases.   We address some of the ideas to help conservators understand the issues and how to go about getting help for resolution of conservatorship crisis by pre and post-crisis planning.  These apply both to non-professional conservators, as well as to professional conservators in California.

What are some of the Advanced Issues Facing Conservators?

The question of when to sell the home of the conservatee is a question that seems to pose many problems in several ways:

1. A conservatee has the right to continue to live in his own home.
2. If the property you seek to sell is the home of the conservatee, you will need a special permission to sell it.
3. The court will appoint the PVP attorney or court-appointed counsel to tell the court what the conservatee wants.
4. You may be faced with opposition by another family member who lives in the home.
5. The cost of moving the conservatee to a facility may so deplete the estate that there may not be any money left to pay the conservator or his attorney.
6. The cost of repairing the property may be so much that it may leave the estate with little money to actually pay for the care of the conservatee.
7. The cost of repairing the property to rent it may be so much that it may not be beneficial to the conservatorship estate.
8. Reverse mortgages are not available if your conservatee is no longer living in his own home.
9. It may be costly to evict tenants from the property, especially in cities that have rent control ordinances.
10. In preparing and presenting the petition for authorization of sale of the conservatee’s home, you must be able to address the cost v. benefit issues very clearly.  We can help you develop a protocol and a checklist that you can use as a conservator to determine if the sale is feasible before you approach the court.

Talk to us about these advance issues facing conservators to determine if you should file the appropriate petition for permission to sell the property of the conservatee in Los Angeles California.  Call Attorney Mina Sirkin, Conservatorship attorney for a personal consultation with a Board Certified Specialist in California in Estate Planning, probate and trust law with experience since 1992 in conservatorships.