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

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.

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.

Can someone who is under a conservatorship make a will in California?

In California, a person who is under a conservatorship retains the right to make a will, unless he or she is found to lack testamentary capacity. California Probate law does not take away the conservatee’s right to make a will under Prob C §1871(c), but the question of whether a will created by a conservatee is valid, is a factual one, if there is no finding of lack of testamentary capacity.

Probate Code 1871 provides:

PRB § 1871. Nothing in this article shall be construed to deny a conservatee any of the following:

(a) The right to control an allowance provided under Section 2421.

(b) The right to control wages or salary to the extent provided in Section 2601.

(c) The right to make a will.

(d) The right to enter into transactions to the extent reasonable to provide the necessaries of life to the conservatee and the spouse and minor children of the conservatee and to provide the basic living expenses, as defined in Section 297 of the Family Code, to the domestic partner of the conservatee. [Amended by Stats. 2001, Ch. 893, Sec. 23. Effective January 1, 2002]”

The issue of testamentary capacity, by contrast, does not involve such issues. [3] “It is thoroughly established by a series of decisions that: ‘Ability to transact important business, or even ordinary business, is not the legal standard of testamentary capacity. …’ (Estate of Arnold [1940] 16 Cal.2d 573, 586 ….” (Estate of Powers (1947) 81 Cal.App.2d 480, 483-484 [184 P.2d 319]; Estate of Mann (1986) 184 Cal.App.3d 593, 605 [229 Cal.Rptr. 225].) Rather, testamentary capacity involves the question of whether, at the time the will is made, the testator “‘has sufficient mental capacity to understand the nature of the act he is doing, to understand and recollect the nature and situation of his property and to remember, and understand his relations to, the persons who have claims upon his bounty and whose interests are affected by the provisions of the instrument.'” (Estate of arnold (1940) 16 Cal.2d 573, 586 [107 P.2d 25], quoting Estate of Sexton (1926) 199 Cal. 759, 764 [251 P. 778]; Estate of Mann, supra, 184 Cal.App.3d at p. 602.) It is a question, therefore, of the testator’s mental state in relation to a specific event, the making of a will. [2b] While it is true that the existence of a conservatorship at the time a will was executed may have some bearing on the question of testamentary capacity in a will contest (see, e.g., Estate of Wochos (1972) 23 Cal.App.3d 47 [99 Cal.Rptr. 782]), appointment of a conservator is not an adjudication of testamentary incapacity. fn. 5

This is made clear by the conservatorship statute itself. Section 1872, subdivision (a) states: “Except as otherwise provided in this article, the appointment of a conservator of the estate is an adjudication that the conservatee lacks the legal capacity to enter into or make any transaction that binds or obligates the conservatorship estate.” A specific exception to this general rule of legal incapacity, however, is that the conservatee retains “[t]he right to make a will ….” (§ 1871, subd. (c).) . Estate of Powers (1947) 81 CA2d 480

If you have a Glendale family member or have filed a Petition for Conservatorship for a loved one or parent, you should investigate whether or not a will exists, and if it does not, consult with a conservatorship attorney regarding creating a will or trust for an incompetent person by using a substituted judgment petition.

If there is a doubt as to the conservatee’s testamentary capacity, a conservator may petition the court to create a will under a substituted judgment petition rules. The court in Murphy v Murphy (2008) 164 CA4th 376, held that a substituted-judgment order had collateral estoppel effect and therefore could not be challenged after the conservatee’s death.

What Standard Does The Court Look For In Finding Incompetency to Make a Will in California?

Under Probate Code § 6100.5. (a), an individual is not mentally competent to make a will if at the time of making the will either of the following is true:

(1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual’s property, or (C) remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will.

(2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual’s devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done.

(b) Nothing in this section supersedes existing law relating to the admissibility of evidence to prove the existence of mental incompetence or mental disorders.

(c) Notwithstanding subdivision (a), a conservator may make a will on behalf of a conservatee if the conservator has been so authorized by a court order pursuant to Section 2580. [Amended by Stats. 1995, Ch. 730, Sec. 8. Effective January 1, 1996]

There are formal and legal ways to make a will for someone incompetent through a special court petition. Call us about substituted judgment petitions in Los Angeles California.

If you are unsure that your loved one has the capacity to make a will, please call us with your questions. Call Mina Sirkin, at 818.340.4479 to consult with out attorney to determine if a conservatee can make a will.

What is a Los Angeles Probate Court Ex Parte Hearing?

What exactly is an Ex Parte Probate hearing in Los Angeles? Ex Parte means with respect to interest of one side. In reality, an Ex Parte Probate hearing means that you are given short notice or no notice to act because there is some kind of urgency.

In probate, there are certain situation when the probate court will entertain urgency proceedings by Ex Parte because there is imminent threat of harm or loss. Sometimes, there is urgency in suspending an executor or trustee. Other times, there may be reason to stop a trustee or executor from taking a certain action.

In some cases, when there is a foreclosure pending, estate court judges may also allow a short restraining order against a lender to allow a probate sale to close.

On occasion, the Court may suspend a conservator, make provisional orders to appoint a temporary trustee, executor or conservator to address certain types of issues. Ownership issues are rarely subject of Ex Parte proceedings in estate court in Los Angeles.

If you have been served with an Ex Parte notice and would like to talk to us, please call probate attorney, Mina Sirkin at 818.340.4479 and email Info@SirkinLaw.com.

#Probate #ExParte #LosAngeles

Los Angeles Probate Court Dispute Resolution

Meaningful resolution of a dispute in Probate Court in Los Angeles can take many turns and twists, but there are essentially several ways to resolve probate estate cases in Los Angeles County. Here is a list of types of ways that the probate court assists litigants in settling cases:

  1. The probate court may guide the litigants to engage in the mediation process put forth by the Settlement Officer Program (of the San Fernando Valley Bar Association).
  2. The court may ask the parties if they are willing and able to attend a private mediation with a retired judge or another mediator.
  3. The probate court may set a mandatory settlement conference (called an MSC).

Call our probate dispute attorney in Los Angeles to discuss the settlement procedures in the probate court at 818.340.4479

Los Angeles Probate Real Estate Dispute Services

When you have been involved in an estate case in Los Angeles, there may be times where you need the services of a Los Angeles Probate Real Estate attorney.

Here is a list of some specific cases where you can use our probate services:

  1. When you are bidding on a probate property in Los Angeles.
  2. When you are involved in a dispute regarding title to an asset which is either in probate, in an estate, or in a trust.
  3. When you believe that the estate asset should not be in the probate court.
  4. When you want to petition to partition the property.
  5. When you have a dispute with an estate or administrator about ownership or title to a property.
  6. When you are about to sell a piece of property and escrow or title tells you that you need a probate court order.

Call attorney Mina Sirkin to consult with us about Los Angeles Probate real estate dispute and our dispute resolution services by calling 818.340.4479 or email: Info@sirkinlaw.com

Why is a Notice of Hearing so important in Probate and Trust proceedings?

California Probate law requires that each time a petition is filed in the probate court pertaining to probate and trust matters, that persons who are entitled to notice receive notice by mail or by another allowable method of service. It is important to serve the notice of hearing because all interested persons are entitled to file an objection, and let the Probate Court know their view of why the petition should not be granted. But more importantly, if no notice is given, this gives rise to a later Motion to Set Aside the Order pertaining to that petition.

To talk to us about Notice of Hearing issues in probate and trusts, please call Mina Sirkin, probate and trust attorney in Los Angeles at 818.340.4479. Email us at Info@SirkinLaw.com.

Probate Business Service Providers in Los Angeles

Probate Business Service Provider Los Angeles California

When you are in the middle of probate administration, there are many connected businesses which provide service to probate executors and administrators in Los Angeles. Here is a list of common types of connected providers in this area:

  1. Probate attorneys.
  2. Probate Real Estate Brokers.
  3. Probate Auctioneers.
  4. Personal Property Disposal Services.
  5. Appraisers.
  6. Probate Referees.
  7. Estate Lenders.
  8. Claim services.
  9. Estate Accountants.
  10. Professional Executors/ Administrators/Trustees licensed by the State of California.

In the area of estate service in Los Angeles, there are a variety of connected business entities that you can come across in any given case. Ask us to refer you to the right providers in our County. Call probate attorney, Mina Sirkin for a referral. 818.340.4479

Power of Attorney Lawyer Attorney

Everything you wanted to know about a Power of Attorney is listed below for your use. Feel free to call our power of attorney lawyer to discuss your individual case.

Requirements of Setting Up the Power of Attorney

The person who wants to give the power is called the Principal. The person who receives the power is called the Agent or Attorney in Fact. In order for the Power of Attorney to work, the Principal must be competent at the time of creation of the power. The Agent must also be competent at the time he or she starts to act as the agent. The document itself also sets up the time when the power goes into effect. Some Power of Attorney documents go into effect immediately. Other Power of Attorneys will start to work only when the Principal has become incapacitated.

In summary, look to see if the following requirements for the power of attorney are met:

  1. Competency of Principal at execution or signing of the power of attorney.
  2. Competency of the Agent at the time he or she starts to act.
  3. Time set in the Power of Attorney document or form when the power starts to work.

What if the Power of Attorney delays its effectiveness until there is incapacity?

Incapacity is usually defined in the instrument itself. If it is not, it can be determined by a certification by one or two doctors. It is important to look to see if the form itself has a definition.

If there are two power of attorney documents which are competing, the later one governs, unless it can be shown that it was invalid at the time of execution or signing of the power of attorney.

How to open an account when you are named as an agent under a power of attorney?

The account should read as follows:

Agent’s name, as Agent under a Power of Attorney for Principal.

Joe Smith, Agent under a Power of Attorney for John Smith.

Banks will accept any variation of the above on the account or may shorten it.

The social security number of the principal is used at the bank.

You must keep the assets of the principal separate from the assets of the agent. The agent should not use the assets of the principal to benefit the agent unless the document so authorizes specifically.

If you doubt that the power of attorney will work, you should consult and attorney about a conservatorship.

Call us to discuss your Power of Attorney needs or a conservatorship with our lawyer and attorney. Call 818.340.4479 to talk to the friendly staff at Sirkin Law Group, P.C.