Where to file a Conservatorship Petition in California?

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

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

How to prevent financial elder abuse in Los Angeles?

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

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

PREVENTATIVE ESTATE PLANNING PROTECTS AGAINST ELDER FINANCIAL ABUSE

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

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

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

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

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

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

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

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

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

email: Info@sirkinLaw.com.

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

  • How to prevent financial elder abuse in Los Angeles

Attorney Advice about Conservatorships Los Angeles

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

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

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

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

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

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

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

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

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

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

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

Who pays for support and caregiving costs in Conservatorships?

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

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

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

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

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

  • conservatorships los angeles

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

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

Executor is ignoring me

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

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

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

Absconding Executor Often Delays

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

Recovery of assets from an executor has deadlines

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

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

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

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

Wills and Trusts:

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

Notification Differences:

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

Inventory in a Trust v. a Will:

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

Payment of Fees in Probate vs. in a Trust:

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

The jurisdiction in Administering a Trust v. Administering a Will

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

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

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.