Author: Sirkin Law Group

Conservatorships in California: Taking care of our friends and family is an important role and mission for all of us in California.  Aging parents or incapacitated special needs adult children can require an extra level of care.  This extra care can come in many forms, ranging from delivering meals and groceries to taking your relative to important medical appointments. In most cases, informal care is sufficient.  In some cases, these steps may not be enough to provide sufficient care to our loved ones.  When your family member needs help taking care of him or herself, it may be time to get a conservatorship.

A conservatorship is a court-ordered authorization allowing one person to make certain decisions and provide particular care for another adult.  There are two general types of conservatorship: Conservatorship of the Person and Conservatorship of the Estate.

Conservatorship of the person means that the conservator is responsible for providing the physical assistance necessary for the cared-for adult, usually called the conservatee.  This means making sure the person has food, medication, clothing, shelter, and any other basic needs.  The conservator can also communicate with the conservatee’s health-care provider to ensure the best and most appropriate health care.  Healthcare decision making is one of the largest tasks of a conservator.

By contrast, the conservator of the estate is meant to protect the finances of the conservatee.   It includes finances in addition to legal decision-making for in estate related issues, such as in carrying forward lawsuits.  The conservator will be responsible for paying bills and wisely handling the income of the conservatee.  The conservator will have access to bank accounts and should try to financially protect the conservatee from those who would try to financially exploit the conservatee. It is possible for the same person to be named both the conservator of the person and estate.

In order to obtain a conservatorship over an incapacitated adult, you will need to file a petition with the court.  Most of our cases involve children whose parent has become incapacitated. This petition will have to provide very particular information, not least of which will be an explanation of why the proposed conservatee is unable to handle his or her own affairs.  The conservatee will have the opportunity to appear in court and object to this designation, as will other close family members.  A court will do its best to closely tailor a conservatorship to provide the least restrictive type of conservatorship that is necessary to provide the appropriate care and oversight for the proposed conservatee.

Our Los Angeles attorneys have extensive experience in helping our clients with establishment of a conservatorship in California.  Call us today to get a consultation to see how we can help you protect your family member.

There are many ways to plan for the future.  We all know that having an estate plan, a Last Will and Testament, and a guardianship nomination document for our minor children are important steps, as are power of attorney documents for all adults.  There are other documents and steps that could help protect our friends and family and will assist in building a secure future.  Two tools for this are conservatorships and powers of attorney.  Both of these will allow an adult to make decisions on behalf of another adult.  In a power of attorney, you can designate the name of a proposed conservator for yourself, if one is ever needed.

These decisions may range from entering into contracts to health care decisions.  However, conservatorships and powers of attorney are very different devices and it is important you understand the difference before deciding which is right for you and your family.

A conservatorship is a court order that will allow you to make decisions on behalf of another adult.  It also can work to limit the rights of the conservatee.   A power of attorney cannot be used to limit the principal’s powers.

To obtain a conservatorship, you will need to file a petition with the court and explain to the conservatorship court the reason that the other adult requires assistance. The probate court determines if the proposed conservator is suitable.  Suitability is reported on by a court investigator, and a PVP attorney.  If the judge agrees, you can be named the conservator over the adult.  You could be named conservator of the estate or conservator of the person.  The former means that you will be responsible for making the financial decisions on behalf of the other person.  You will need to pay his or her bills and responsible handle income.  Conservator of the person means that you will need to be responsible for the person’s physical day-to-day care, ensuring that he or she has daily necessities such as food, shelter, and utilities.

A power of attorney is executed voluntarily by a competent person sharing control, but not giving up control.  The person granting control (called a “principal”) can execute a simple document that grants broad or very narrow powers to another adult.  A power of attorney can, for example, allow the second person to enter into contracts, sale a home, make banking decisions, or make medical decisions for the adult granting control.  Most importantly, the person executing the power of control can revoke or revise the power of attorney at any time for any reason.   Unlike a power of attorney, a conservatorship cannot be revoked.  It can be terminated by a court order, after presentation of certain evidence.

A person who was selected as an agent in a power of attorney is not required to take on the duties named in the power of attorney documents.  He or she can decline.  However, once he has accepted to act as an agent, he or she must comply completely with the terms of the power of attorney.  If the second person (called “agent”) does not want to make medical decisions or enter into contracts, that is not required, but he/she cannot partially accept.  The agent cannot take on the job in part.

In a conservatorship, when once you are named as conservator, it is your duty and responsibility to make sure the conservatee is properly looked after, as designated by the court order.

Our lawyers at Sirkin Law Group’s Los Angeles County office, have extensive experience in helping our clients find conservatorship solutions for their particular case and for their elderly family members.  Contact us today so we can talk with you about your goals.

Owning a home and other real estate has long been a part of the American dream.  Millions of Americans use real estate as an investment tool, and a trust as a way to help protect and ensure the future of their family and loved ones.  This method can be very successful to help secure the financial stability for your family, and it is essential that your real estate investments are coupled with a detailed and tailored estate plan.  An estate plan can take real estate into account in several different ways.

One common tool for real estate and estate plans is a trust.  With a trust, you transfer your asset (in this case your real estate) to the trust.  The trust documents you execute will name a trustee and a beneficiary.  The initial trust is usually you.  The trustee is responsible for administering your trust in accordance with your wishes.  The beneficiary is the person you designate to receive the benefits of the trust.  There are wide varieties of trusts, most of which allow you to name yourself as both trustee and beneficiary.  There are also distinct tax planning opportunities in trusts.  In some cases, transferring your real estate to a trust can mean that your real estate will pass outside of probate.  If you have substantial real estate assets, with proper tax planning, this can reduce the probability that your beneficiaries and heirs will be burdened by estate taxes.

Another way to keep your real estate in mind when constructing your estate plan is changing the way your real estate is titled.  Having your home titled as “joint tenant with rights of survivorship” is a common way to accomplish this.  This method is typical and popular with married couples.  Having real estate titled this way allows the property interest you hold in a home to immediately pass to the joint tenant without having to go to through probate or extra steps.  One downside to this method is that titling real estate as a joint tenant with another person gives him or her immediate rights to the real estate, even before you pass away.   A risk in putting title in joint tenancy is that your joint tenant may become incapacitated, or involved with the wrong people who may take advantage or him or her.

If you own real estate or other property, you need an estate plan.  Call us today to talk about your family and what we can do.

The nature and face of the American family is changing, and has been for years.  America is aging and divorce is common to the aging population.  Divorce, being a single parent, and remarriage are all common.  It is always a joy when people are able to move forward and remarry.  Adding step-children can also be a wonderful time to help expand a family’s ability to love and grow.  Although estate planning may not be the first thing you want to think of right after you have remarried, it is an important time to do so.  Blended families have some unique estate planning considerations that you should think about.

First, if you have children from a prior relationship, it is essential that you have an up-to-date Last Will and Testament, and that you have a trust.  Your Will needs to make specific provision for your children and your current spouse.  Moreover, if you have step-children who you wish to provide for after your death, you need to make specific provisions for them, as well.  Without a Will or a trust, your assets will be distributed according to the California laws of intestacy.  Intestacy laws will distribute your assets according to a set of default rules.  These rules will state exactly how much your wife receives and how much your children receive of your community and separate property.  Especially in cases where your new spouse may have plentiful separate resources, you may wish to ensure that your children receive a different percentage than dictated by the law.  Moreover, step-children do not automatically receive a share of your estate, so without a Will, a dearly-loved step-child may be left out in the cold.

Another important consideration is how you hold real property.  If you purchase a home with your new spouse, it is likely that it will be titled as joint tenants.  This means that upon your death, your interest will pass automatically to your spouse, and passes outside of probate.  If you have children from another relationship, your children will not inherit a portion of the value of the real estate that automatically passes to your spouse.  Most people hold a substantial amount of their assets in real estate, so if this is also true for you, you need to make sure to update your estate plan to make sure your children from another relationship do not miss out on a large chunk of your assets.

Finally, you should also consider your life insurance policies.  Life insurance passes outside of probate.  This means that your Will or even intestate laws do not impact how the proceeds are distributed.  You need to revisit who is named on the beneficiary on your policy after you remarry to make sure that your new family is properly provided for.

We have extensive experience in helping all types of blended families create an estate plan that is right for their needs.  Contact us today for a consultation.

We all know that planning for the future of your estate is important.  Carefully plotting our goals helps us to achieve our objectives.  Estate plans are one essential part of constructing a stable and secure future for yourself and your family.  Creating an estate plan means that you execute a series of documents that set out your plans for your asset distribution in the event of your death or incapacitation. Estate plans can also include documents that detail how you want your own health care handled, such as the case with a Living Will or an Advance Directive.  It is important that you make an estate plan to ensure that your wishes are properly carried out.

Some people believe that their estate is too small for an estate plan.  This is not true.  Estate planning is not just to assist wealthy individuals avoid estate taxes.  An estate plan almost always contains a Last Will and Testament, which will detail how you want your assets distributed after your death.  Without a valid Will, your assets will be allocated according to California laws of intestacy.  This could result in estranged relatives receiving your assets while your loved ones and close friends receive none of the financial security you hoped to provide.

Estate planning is also essential if you have minor children.  It is important for you and the other parent to discuss who should be named the guardian of your children in the event both of you pass away.  Moreover, especially if you are not in a relationship or marriage with the other parent, you may wish to discuss trust options with your estate planning attorney to make sure that the assets you leave to your child are properly used for the benefit of your child’s necessities and education.

For those who do have substantial assets, an estate plan is also important.  Estate planning has a wide variety of tools to allow some assets to pass outside of the probate process.  In some cases that means that the assets are not counted as part of your estate at the time of your death.  Passing outside of probate makes the process smoother and can help minimize the estate tax liability for your beneficiaries

We can help you create a thoughtful and tailor-made estate plan.  Call us today for a consultation.

What you may have planned for your trust, may be thwarted, if someone uses “excessive influence” to change your estate plan, trusts or estates, by law referred to an influence that is uhdue. Estate plans are the best way to help secure your future and that of your loved ones.  Although there are many tools that can be utilized to make sure your estate plan meets your needs and has the best chance of achieving your goals, trusts can be a great way to help ensure the financial future you envision is actually achieved.  When constructing a trust, the person transferring assets (called the “grantor”) will decide who is in charge of making the trust distributions (called the “trustee”) and who will receive the advantages and benefits from the trust (called the “beneficiary”).   Where there is a large amount of assets involved, some people may try to pressure the grantor into naming particular people as trustees or beneficiaries.  This sometimes rises to the level of undue influence.

The California probate code defines undue influence as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s trust and results in inequity.”  In essence, undue influence means that someone who holds authority or power over the grantor applies pressure to coerce the grantor into making a specific type of trust or naming specific people in the trust.  This typically takes the form of the person exerting the undue influence being named as the beneficiary.

There are two main ways to prove undue influence in California.  First, there is a rebuttable presumption if the person alleging the undue influence can prove that: 1) there was a confidential relationship between the grantor and the influencer; 2) the influencer participated in actually obtaining the trust; and 3) the influencer obtained an undue benefit from that trust.  The California probate code also provides that the person asking for the trust to be invalidated can do so by proving that: 1) the victim was vulnerable; 2) the influencer had authority over the grantor, or at least appeared to; 3) the influencer took action and used particular tactics to influence the victim; and 4) an unfair outcome was the result of the undue influence.  If undue influence can be proved in court, the trust can be completely undone.

Our attorneys are highly experienced in trusts and undue influence cases.  Call us today to talk about your case.

It is no mystery to anyone that family dynamics can be complicated and sometimes difficult.  Family can be a wonderful resource and foundation for us in all stages of our life, but unfortunately, those relationships can sometimes sour.  When crafting an estate plan, this can sometimes result in the testator deciding to disinherit some of his or her relatives.  There can be many reasons why someone chooses to disinherit friends and family.

The most obvious reason someone may choose to disinherit a relative would be due to a major disagreement or estrangement.  A fundamental difference of opinion about how a family matter should be handled, for example.  Another reason may be that a parent may decide to disinherit a child because that child lives a lifestyle of which the parent does not approve.  It is not terribly uncommon for a wealthy parent to not want to leave major assets to an adult child just to have those assets squandered on gambling or drugs.  Adults may also want to disinherit their spouses because of marital disagreements.  However, if you are considering disinheriting your spouse, you should know that this is much easier said than done.  California, like most other states, provides for what is called a “spousal share.”  This means that even if your Will states your spouse should receive nothing or a very small share of your estate, your spouse can still override that Will and take the minimum amount allowed to him or her under California law.  Also of note is that children and other relatives do not have the same privilege, so if you decide to disinherit your children, there is no equivalent “child share” provision in the law.

Another reason to disinherit someone could be that you believe that he or she already has ample assets and does not need the benefit of your generosity.  This could occur when, for example, one of the testator’s children is a wealthy business owner and the other is a kindergarten teacher, barely scraping by.  It could make sense to a testator to leave the assets to the child who needs the help more.  Testators should be cautious when choosing this route, however, as it could result in resentment between the children.

Finally, a testator may decide to disinherit other family members when one family member or trusted friend has provided all or most of the testator’s end-of-life care.  The testator may feel that he or she wishes to provide as much benefit to that friend or loved one who gave so much of his or her time to make the testator’s final time as comfortable as possible.

The decision to omit a child or disinherit a child requires thinking about why we want to take this action, and is a highly personal decision which requires the assistance of an experienced estate planning attorney.  Call us today to make an appointment to talk about your goals.

When most people think of “probate” they think of the process that a Last Will and Testament goes through when someone dies.  While this is accurate, this is not the only process that may be involved in probate.  Probate can also include a variety of other proceedings, such as intestacy proceedings, conservatorship cases, probate litigation, and trust contests.  While some of these cases may smoothly go through the process with a minimum of fuss, this is not always the case.  When there are disagreements, probate litigation may be necessary.

One of the most common reasons that probate litigation is necessary is when contesting a Will.  A Will may be contested for a number of reasons.  The person contesting the validity of the Will could allege that the testator (the person who made the Will) accidentally left someone out.  A person could also allege that the Will was only signed because of undue influence or coercion by one of the people who now stands to inherit under the Will.  Allegations that the Will is forged is yet another reason that it may be contested.  For any of these reasons, as well as a wide variety of others, probate litigation may be necessary, as a judge will need to examine the evidence relevant to the allegations and decide whether part or all of the Will is invalid.

Another common area in which trust litigation occurs is in conservatorships.  A conservatorship is established when a court order is issued allowing one adult (called the conservator) to make decisions for another adult, who is otherwise unable to care for him or herself without this assistance (called the conservatee).  In conservatorships, litigation can arise when other friends or family members of the potential conservatee do not agree that the person seeking to be named conservator is best-suited to fill this role.  Litigation could also arise because the potential conservatee does not agree that he or she requires any type of oversight or assistance to make it through life.  When a trust has come about as a result of undue influence, a conservator can ask the court to allow the conservator to revise the trust.

Trusts are litigated in probate court. With a trust, the grantor conveys certain property to a trust.  The grantor will name a trustee to be in charge of how the trust is distributed as well as name particular beneficiaries who receive those distributions.  When beneficiaries disagree that that trustee is properly handling the trust, this may require trust litigation.  Litigation could also be required where property in the trust is in dispute.

We are familiar with all types of probate litigation and have extensive experience with helping our clients navigate the process.  Call us today for an appointment.

There are many ways to help plan and structure the future for ourselves and our family.  Most estate planning revolves around arranging your own estate and your own assets.  In some cases, your aging family members or loved ones may need more than an ordinary amount of assistance in arranging their own affairs or even caring for their day to day needs.  It may then be necessary for you to seek a conservatorship, and take steps in learning how to choose a conservatorship attorney.  If you are seeking to be named conservator over an incapacitated friend or family member, you will need to file a petition with the probate court explaining why it is necessary to set up this type of arrangement.  It is important that you choose the right conservatorship attorney.

First, you will want to choose an attorney who has experience in the area of conservatorship.  Conservatorship can have many nuances and complications.  In many cases, it may be necessary to present expert medical evidence to demonstrate to the court that the proposed conservatee is unable to manage his or her own finances or care.  You will need an attorney who is experienced not only in the fundamentals of filing the basic paperwork, but also with the potential complications of litigation.

Next, you need to look for an attorney who will listen to you.  Conservatorship cases can involve deeply personal relationships, and you will need an attorney with whom you feel comfortable sharing these potentially intimate details.  This does not mean you need to find an attorney that is your best friend, but you do need one that you can communicate with effectively.

Third, you want to talk to your potential attorney about your budget and your financial limitations.  Attorneys can work within budgetary constraints, but only if you are honest about those concerns.  You will want to choose an attorney who believes he or she can effectively represent you and work toward your goals while also keeping financial issues in mind.  Together with that, you will want to choose an attorney who is open and transparent concerning billing issues.  Talk to your potential attorney about how billing is done in that firm.

We have extensive experience with conservatorships and with helping our clients to achieve their goals.  Contact us today and out conservatorship attorney can talk with you about your particular family and what we can do to help you

Estate planning, and even trust basics can look very different depending on the needs of your family and what you have planned for the future.  A Last Will and Testament, a living will, or a power attorney can all be a part of your estate plan.  Trusts are part of the center estate planning tools that you may want to consider as part of your plan for the future.

Trusts are, at their core, a relatively simple arrangement.  The person who wishes to create the trust is called a grantor.  He or she will transfer assets into a trust.  The grantor will name a trustee, who is the person responsible for overseeing and managing the trust, as well as making distributions according to the grantor’s instructions.  The grantor will also name a beneficiary.  The beneficiary is the person or persons who, as their name suggests, receive the benefit of the trust distributions.  The beneficiary can also be a charitable organization or even a loved pet.  Depending on the type of trust, the grantor, the trustee, and the beneficiary can all be the same person.

There can be many advantages to creating a trust.  The first is that a trust can help certain assets be passed outside of probate at the time of your death.  Probate can be a long and complicated process.  Creating a trust removes the assets from your estate effective at the time the trust receives the asset.  This means that the asset will pass, be managed, and distributed according to the terms of the trust.  Avoiding the probate process can save your friends and family time and money.

Another advantage can be that using a trust will minimize the potential for disagreements about valuation of assets for purposes of distribution.  California and federal law both provide that if your estate is valued over a certain amount at the time of your death, your estate could be assessed heavy taxes.  These taxes will have to be paid before the remainder is distributed to your named beneficiaries.  These taxes can be substantial, so minimizing tax liability is important.

Trusts can also help smooth the transfer with highly regulated or highly personal assets.  One example of this is an art trust.   Using specialty trusts can allow you to pass on your artwork and to establish an ownership record for the artwork.

Feel free to talk to us about trust basics or your complicated trust situations. Our trust attorneys have extensive experience helping our clients select the correct type of trust for your assets and your family.  Call us today so we can help you with your decision.