Author: Sirkin Law Group

Sometimes conservators wish to resign due to age, health, or other reasons. Deciding to provide protection and stability for a friend or family member is a true act of love and support.  There are many ways we can help our friends and family members, including taking them to medical appointments, buying groceries, and helping them organize their finances.  In some cases, our friends or family members may require additional assistance and may not be able to handle their own affairs.  In such a situation, you may petition the court to name you as conservator.  A conservator is responsible for making sure the conservatee is taken care of.  There are two types of conservatorship: conservatorship of the person and conservatorship of the estate.   Health Care Conservatorships are called Conservatorships of the Person.   Asset Management Conservatorships are called the Conservatorship of the Estate. Conservatorship of the person would mean the conservator is responsible for making sure the conservatee has food, shelter, and health care, and may also be required to make medical decisions.  Conservator of the estate is the person responsible for properly handling the conservatee’s financial matters, like paying bills.  These two types of conservatorship roles may be filled by the same person.  If you are named conservator, you can see that it is a big responsibility that can be time-consuming.  If you believe you should no longer serve in the capacity as conservator, you may need to quit or resign.

California probate code 2660 addresses the situation in which a conservator feels the need to resign.  Note that the probate code provides that a conservator cannot simply walk out and stop fulfilling his or her duties.  Instead, the conservator is required to file a petition with the court tendering his or her resignation.  Notice of the petition will be given and a hearing will be held to ensure the resignation is proper.  The court will be the one to decide when the conservatorship resignation becomes effective.  In other words, you may be required to continue to serve for a brief period while the court makes arrangements for the continued care of the conservatee.  The court may make any necessary order to provide for an interim conservator. The court may also make orders providing for the settlement of accounts of the resigning conservator and the transfer of the matter to the new conservator.  It can take several months to quit as a conservator.

We are familiar with the process and procedures surrounding conservatorships.  Call us today for an appointment.

How Do You Remove a Trustee in California?  Los Angeles Trusts Attorney Explains this below.

Our lawyers represent beneficiaries and trustees in cases involving cases where the goal is to remove a trustee in California.  There are a variety of instruments that can be used in an estate plan to help make sure that your wishes for the future and financial security for your family are seen to after you are gone.  Trusts can be an excellent tool in this capacity, and can be specifically tailored to all types of situations, ranging from simple transfer of liquid funds to special collections.  One thing that all trusts have in common, however, is that they must name a trustee.  A trustee is the person responsible for managing the assets inside the trust and making distributions in accordance with the provisions in the trust document.  The trustee owes a high duty of care in fulfilling his or her duties.  There are some unfortunate cases in which the trustee is not fulfilling his duties and may need to be removed.

The method of removing a trustee will vary depending on the type of trust.  The most straightforward process is when the trust is a revocable trust.  In such a case, the settlor (i.e. the person who created the revocable trust) can simply revoke or amend the trust and name a new trustee.  The process is less straightforward when the trust is irrevocable.  Where the trust is irrevocable, the beneficiary or other person with a direct interest must seek intervention from the court by filing a petition requesting that the trustee be removed.  California probate code § 15642 provides a variety of reasons why a trustee may be removed.  These reasons include the trustee declining or failing to act, excessive compensation, or breach of trust.  A trustee may also be removed where he or she has become insolvent or is otherwise unfit to continue to serve in his or her capacity.  The beneficiary must state the reasons he or she seeks removal in the petition and the petition must be served upon the trustee, as well as any other interested parties.  The court will have a hearing where the beneficiary will need to produce evidence of the trustee’s unsuitability or wrongdoing.  The trustee will have the opportunity to present evidence controverting the beneficiary’s claims.  The court will then determine if it is appropriate for the trustee to continue on or if a new trustee needs to be appointed.

Our specialist Los Angeles attorney has over 26 yers of experience helping our clients with all types of trust and probate issues, including actions to remove a trustee.  Contact us today to talk about your questions regarding estate planning.

What can you do to remove an executor in Los Angeles California? Dealing with the end of life of your close friend or family member is a difficult time, and the grieving process is never easy, when your thoughts are focused on removing an executor or trustee.  The decedent’s estate may likely have to go through probate in California, whether or not he or she drafted a valid will.  The person responsible for managing the estate of the decedent is called the executor, but there are lots of things that can go wrong when an executor fails in his or her responsibility.    Sometimes the different administrator or executor responsibilities overwhelm the executor whose job includes opening probate, gathering assets and debts, notifying creditors, and ultimately distributing the assets according to the decedent’s will or, whether there is no will, the California laws of intestacy with the help of a probate lawyer.  In most cases, executors work with diligence to make sure that the estate is managed and distributed properly, but there are those situations where this is not the case.  Where that is true, it may be necessary to remove an executor.

The first step is to file a petition with the court to ask that the executor be removed.  Not just anyone can file this petition.  Instead, the person filing must be a beneficiary, potential heir, or some other person with a definable interest in the estate.  The petition needs to clearly state the reasons why the removal is sought, and the petition will need to be served on the executor.  California probate code § 8500 states that if the court believes that there may be good cause to remove the executor, that the court may issue an order requiring the executor to appear and show cause why he or she should not be removed and should be permitted to continue on in his or her responsibilities.  While the parties are waiting for the hearing, the court also has the ability to suspend the executor’s ability to act on the estate’s behalf.  California probate code § 8502 lists many reasons why removal of an executor may be proper, such as wasting estate assets, committing fraud, or neglecting the estate.  The executor may also be removed if he or she is no longer qualified to fulfil the responsibilities.  If the request to remove the executor is successful, the court will likely need to appoint a new executor.  If the will names a co-executor or a successor executor, the court usually honors the wishes of the decedent and will name that person next.

Removing an executor in Los Angeles and in all of California requires preplanning.  Our Los Angeles attorneys have expert level experience in helping our clients in all stages of the probate process, including executor removals.  Contact us today to talk about your case and what we can do to help you reach your goals.

Removing a conservator in California requires much thought and preparation. It is never easy to watch a friend or family member age or become too sick to manage their own affairs.  In some of those cases, another family member or loved one may be named as conservator by the court.  A conservator may be named as conservator of the person (in which case he or she is responsible for making sure the conservatee’s everyday physical and medical needs are met), conservator of the estate (meaning responsible for the financial affairs of the conservatee, such as paying bills or providing an allowance), or both.

The conservator has broad responsibilities and owes what is referred to as a “fiduciary duty of care” to the conservatee.  A fiduciary duty is the highest left of care that can be owed, and means that he or she is entrusted with the conservatee’s well-being.    A person with fiduciary duties owes a duty of loyalty to another.  While the vast majority of conservators are working hard for the best interest of the conservatee, there are some situations in which you many believe it is necessary to remove a conservator.

It is important first to understand that a conservatorship can only be established with a court order.  This also means that it can only be undone with a court order.  In other words, you cannot dismiss or remove a conservator unilaterally.  Rather, you will have to seek an order from the court removing the conservator.  A family member, friend, or other potentially interested party may petition the court requesting the removal of a conservator and must clearly state the reasons the removal is requested.  California probate code 2650 states that a conservator may be removed by a court for a variety of reasons.  For example, the conservator can be removed for failure to use proper diligence and care in fulfilling his duties, incapacity to fulfill the duties, or failure to file an accounting at the proper time.  However, the conservator could also be removed because of conflicts between his or her interests and that of the conservator, conviction of a felony, or filing bankruptcy.  The court will also need to determine that removal of the conservator is in the conservatee’s best interest.

Call our specialist attorney in Los Angeles conservatorship who has over 26 yrs of experience in assisting our clients with conservatorships and removals at all stages.  Call us today to talk about your friend or family member and what can do to help you protect them.

Through movies, soap operas, and general word-of-mouth, we have all heard about the “reading of the will.”  In media depictions, an attorney in a large office gathers the family and friends to read the contents of the will in order to apprise all the heirs and beneficiaries of who will receive what from the decedent’s estate.  As a result of these popularized depictions, it is not uncommon for potential heirs to wonder how long it will take for the reading of a will in California and how they will know when the reading is to be held.

The truth is, there is no law requiring that a will be read aloud to the heirs and beneficiaries.  Although the depictions of dramatic, posthumous revelations may make for good entertainment, it is not what typically happens during a real probate proceeding.  Once a probate case has been initiated, the will itself is filed.  Accordingly, anyone may then go an request a copy of the will at the courthouse where the probate case is going on.  Even if no probate case is initiated, the will is required to be lodged by the person holding the will once he or she is notified of the death of the testator.  That will is still part of the public record and may be read by anyone.  While a testator may certainly make a request that such a meeting be held, it is far from the normal course of conduct and is not required by California law.

There are straight forward policy and practical reasons for not holding a will reading.  In the event that a will intentionally omits certain people who believe that they should have been entitled to inherit, then having a room full of snubbed relatives and friends can lead to hot tempers.  Anger and resentment at that time could lead to more will contests than necessary being filed, which would unduly burden the probate courts.  Feeling a will is unfair or resenting how a relative behaved at a will reading are not valid reasons to contest a will, and such protests could clog the court systems and lead to unnecessary delay in the process.

We have extensive experience in walking our clients through the probate process.  Contact us today and we can talk with you about the procedure and what to expect.

How do you put a house in a trust in California? People work long and hard to build their wealth and ensure their financial security.  Real estate, and particularly the individual’s primary residence, is often the most valuable assets a person will own.  Estate planning is an excellent way to make sure that the wealth and assets you have labored hard to build will remain and continue to provide security for yourself and also your family in years to come.  One tool to help protect your real estate and your future is a living trust.

A living trust is a revocable trust (garden variety trust) that you create during your lifetime.  You can place your real estate, including your home, into the trust.  You can still maintain control over the assets in the trust, and can also continue to reside in and benefit from the residence during your lifetime.  At the time of your death, the home would then pass directly to the beneficiaries named in your trust instead of having to go through the probate process.

When choosing to create a trust, certain particular trust documents must be created.  These documents will name the grantor, what assets are to be placed in the trust, the beneficiaries, and the conditions and terms of the trust, just to name a few issues.  This will not be sufficient standing alone, however, to transfer the real estate into the trust.  A grant deed must be filled out and executed transferring the home to the trustees of the trust, not to the trust itself.  This may sound redundant if you are both the grantor and the trustee, but it is an important step, and the new deed will state the trustee is granted title in the capacity of trustee.  For example, if your last name is “Brown,” and you are the current sole owner of your residence, the grant deed will have your name as sole owner as the person granting the property, and your name “as trustee of the Brown Family Trust.”  Other important steps need to be taken at this point to avoid unnecessary taxes and complications.  For example, you will need to check your title insurance conditions and requirements to ensure that you properly report the transfer and trust creation.

We can show you how to put a house in your California trust. We have extensive experience in assisting our clients with real estate and estate planning advice.  Contact us today for a consultation to discuss your plans for the future.

How do you protect your married daughter in your trust? There are few things in life that we fight to protect more than our children.  We make plans for their future and help teach them how to achieve success and stability.  Watching your child find the person she wants to marry and start a life with is a joyous and exciting time.  However, it is not uncommon for parents to worry about the future and want to ensure that a daughter’s financial security is certain even in the event of divorce.  There are some techniques you can use involving trusts that can help to protect your married daughter.

Like any type of probate or estate planning, the key to making sure that the trust you establish for your daughter actually protects her future is to plan ahead.  California is a “community property” state.  This means that most assets received by either party to a marriage before the marriage begins, are separate property and will not be divided into two in a divorce.  You must instruct your daughter to refrain from mixing the assets with her husband’s assets, or their joint assets.  Likewise, you must tell your daughter not to change the character of the assets by agreement.

In other words, one of the best ways to make prevent the conversion of separate property gifts and inheritances, is a trust you establish to protect your daughter.  The assets of a trust created by you will not be divided in a divorce and given to the husband.  However, if your daughter is ordered to pay child support, even your trust can be reached under certain special circumstances.  Your revocable trust is therefore, a way to protect your married daughter’s interests.

With a revocable trust, the person creating the trust retains control over the assets and distributions.  The assets inside the trust are not transferred to the beneficiary.  This means that if you create a revocable trust, your daughter’s spouse will not be entitled to a portion of the assets in the trust, as those assets do not belong to your daughter.  This will be true even if the revocable trust is created by you after the date of your daughter’s marriage.  This assumes that the only assets in the trust are yours.   Your daughter cannot hide her own assets in your trust, and we caution you against this.

Irrevocable trusts can also protect your daughter’s interests.  With an irrevocable trust, discretionary provisions can protect your daughter.   If the beneficiary has no control over when the assets will be distributed, then he or she has no ownership interest in the assets inside the trust.  This means that, as with a revocable trust, the assets inside the trust will not be subject to distribution in the divorce.

We have extensive experience in helping our clients with careful estate planning to protect their children.  Call us today to talk about your options. Call 818.340.4479.

Being named as the executor of the estate of your friend’s or loved one’s estate is a big responsibility.  You will have many obligations, such as identifying the estate’s assets, filing the proper paperwork, notifying creditors, and ultimately distributing the assets, just to name a few.  There may also be complicated or nuanced procedures that you will need to understand and deal with in the process.  If you have been named the executor of the estate of your friend or family member, you may be wondering how much it will cost to become an executor.

At the beginning of any probate case, whether or not there is a will, the case must be opened by filing a petition asking the court to open probate.  There will be a filing fee associated with this case, which in most counties in California is around $435.  There will also be a newspaper publication fee, which can be as low as $150 or as high as $900 for the publication process.  The publication is to notify potentially interested parties of the pending suit.  The petition to open the probate will also need to be served on particular parties by mail, by use of a notice of hearing.  However, if a person is approved as executor, these fees are not paid personally by the executor, but rather by the estate.  Similarly, if there is an attorney that must be hired to represent the estate, that attorney will be paid from the estate.    California Probate code §10810 provides a maximum fee schedule for attorneys based on the value of the estate.  You should be aware, however, that if you have to hire an attorney to represent you as the executor due to, for example, allegations of mishandling the estate there are additional fees.  Moreover, the executor is entitled to be compensated for his or her time spent on administering the estate.  Like a probate attorney, California law provides that an executor will receive a percentage of the total assets in the estate.

If you have been named as the executor of an estate in a will, contact us today.  We can discuss with you your rights and responsibilities.

Has the executor or trustee died? When dealing with the legal process, there can be lots of difficult procedural issues that need to be dealt with, such as death of an executor or trustee, and probate matters are no exception.  In addition to getting probate started, the executor of the will is responsible for gathering the estate’s assets, paying its debts, and distributing the remaining assets to its beneficiaries.  Trustees have a similar list of important jobs with respect to the trusts they administer, as they must ensure that the assets in the trust are handled with the utmost care and distributed according to the provisions in the trust documents.  In some unfortunate circumstances, an executor or trustee may pass away before his or her responsibilities have been completed.

In the case of an executor.  Any person seeking to become the administrator (same as executor), should apply to the court to issue new letters testamentary naming a new executor.  If there is no co-executor, and the will names a back-up executor, the court will appoint the successor, unless there is cause not to appoint that person.  If there are no back-up executors named in the will, then the court will then look to other surviving family members or even a neutral third-party, such as a professional fiduciary.

In the case of a trust, what happens next will depend in part on what type of trust was created by the original trust documents.  For example, in the case of a revocable trust, the original trustee is often the same person as the settlor.  Upon the settlor’s death, there is then a successor trustee that will have been named in the original trust documents.  The successor trustee will have many duties to perform at the beginning, such as notifying any potential new beneficiaries of the trust, identifying and gathering the assets of the trust, filing the proper tax documents, and then continuing to administer the trust in accordance with the trust documents, if the trust is to stay in existence.  In the case of an irrevocable trust, like a will, the proper procedure is to look to the trust documents to check for alternate trustees and if none are available, to ask the court to name a new trustee.  We can help you get a new trustee appointed.  Call us at 818.340.4479 for more information on replacing a trustee.

If you have questions about the administration of trusts and wills, contact us today.  We have experience in assisting our clients.

Dealing with the end of the life of a friend or loved one is a difficult time.  Grieving is difficult and the last thing you probably want to handle is legal hurdles.  Like any legal procedure, it is difficult to predict how long a probate case will last.  Most probates in Los Angeles California take about a year, some much longer.  It comes as no surprise, then, that many people hope to avoid the process altogether.  Whether it is possible to avoid probate depends on many factors, especially if there is a will.

Not all wills must go through a full probate process in California.  However, all wills do have to be filed with the court.  California probate code § 8200(a) states that within thirty days of learning of the death of the testator, the custodian of the will must “deliver the will to the clerk of the superior court of the county in which the estate of the decedent may be administered.”  Following the delivery of the will to the clerk of the court for safekeeping, a petition should be filed to start the probate process.

The named executor, also called the “personal representative,” is typically the person who files this petition.  When there is a will, but there is no named executor, the person who wants to become the executor, files a petition for probate administration with will annexed.

In some circumstances, there is a simplified probate procedure available.  If the value of the estate is less than $150,000 any person entitled to the asset, can submit to the bank or other entity, an affidavit that states there is no probate, and that he or she wants to collect those assets without a court filing.

With a 13100 Affidavit, there is no probate process at all.   This becomes somewhat difficult where there are creditors.   Note that not everything the decedent owned at the time of his or her death is included in the calculation of the estate’s value for purposes of determining whether the estate is eligible for simplified affidavit procedure.  For example, property held as a joint tenant, life insurance, or property held in trust are just a few common exclusions from the value calculation.  This is one of the many reasons that estate planning to ensure that your assets pass outside of probate can be an enormous advantage for your executor.

Where there are disagreements as to who should collect the asset under PC 13100, if the parties cannot agree, they can seek declaratory relief about who will collect the assets.

Simplified procedures are not appropriate in every case even when the estate is small, such as where there are allegations of undue influence or fraud.

What is probated can be easy or complex. We have extensive experience in all types of probate matters.  Contact us today so we can help answer your questions about the process.