Protecting Yourself From Your Agent Under a Power of Attorney

A power of attorney is document that is more important than your will or your trust, because it impacts the maker of the power during his or her life. While you may believe that the intention of your agent is good, you shouldd know that you have options.

A. You can require your agent under a power of attorney to be required to account to you, and a third party if you are incapacitated.

B. You can restrict your agent from taking any action that personally benefits him while you are alive.

C. You can prohibit the agent from acting in certain ways, for example. You can require that your agent must allow all of your family members the right to visit you. This becomes very important because often, agents believe they can keep all people away from you.

D. You can specify the type of housing your agent can prove to you, by building language that limits his contracts.

To talk about powers of attorney to an estate lawyer in San fernando Valley and in Los Angeles about your power of attorney, or abuse of a power of attorney, call Mina Sirkin, counsel to elders. 818.340.4479 or email: info@sirkinlaw.com.

What to discuss with your Wills Lawyers?

WILLS LAWYERS ATTORNEYS AT LAW – LOS ANGELES GLENDALE PASADENA WOODLAND HILLS

WHAT IS A WILL?

A will is a set of instructions or wishes left by a person who is deceased as to how to distribute his or her assets.   In a will, an executor is named to handle the responsibility of collecting the assets, paying the creditors, and distributing the estate assets with Court approval.     Attorneys at Sirkin Law Group have over 26 years of experience preparing wills and administering wills in probate courts in Los Angeles Ca.

WHAT IS THE MONETARY THRESHOLD FOR PROBATE?

In California, if the non-beneficiary assets of the person are at $!50,000 and above, the will must be probated.  Ask us what is subject to the $150,000.    If all assets fall below $150,000, then the assets may be collected by an Affidavit of Small Estate in California.    The $150,000 is comprehensive, it includes real property and personal property, which does not have a beneficiary, and was not in a trust.

WHAT KINDS OF WILLS ARE THERE?

There are several different kinds of Wills:

1.  Holographic Will:   This type of will is entirely written in the decedent’s handwriting, signed and dated. A hand-written will of the decedent does not require witness’ signatures.

2.  Statutory Will Form:   A statutory type of will can be used in limited situations where there are no beneficiaries who are disabled, and where there is no trust.  This type of will does not provide for too many alternatives and has limited use.   

3.   Attorney Prepared Will:   A general will (or a traditional will) has to be witnessed by at least two witnesses in California.   Attorneys will question their clients regarding beneficiaries’ abilities and disabilities.   An attorney drafted will is flexible in that it can provide for many different alternatives.  

4.  Pourover Will:  A Pourover will is a type of will, which normally comes with a trust.  It is a catch all instrument (much like a funnel), for a trust in the even the decedent has left an asset out of the name of the trust and without a beneficiary designation.

To learn more about wills by consulting with our skilled wills attorneys, or to find out more about the various types of wills available for your special situation, call the lawyers at Sirkin Law Group, P.C. in Los Angeles, Glendale, Woodland Hills and Pasadena Ca.   We have a specialist on staff to assist you with any situation involving wills in California.

Search for the Right Probate Attorney in Los Angeles

Are you in search of a great probate attorney in Los Angeles?   Determining if you are interviewing the right probate lawyer means that you must meet and discuss your needs personally, to understand the scope of the representation by the probate attorney.   Trust lawyers and estate lawyers come with different skills, patience, experience, and energy.  You must ask yourself which of the above qualities you value the most in your probate counsel, to move forward.

For example, disputes about a will require litigation skills, energy and experience.  When someone passes away, there is a period of time when relatives do not get along.  It is very common during this period that people accuse each other of wrongdoing with respect to the decedent.   Old emotions about a sibling come out during grieving.   An experienced attorney can help you avoid some of the unnecessary fighting, and be there when you need a strong presence in probate court.

Just because there is a will, does not mean that all assets are going to go to probate.   Assets that pass by contract, such as life insurance, or by beneficiary designation, normally do not end up in the probate court.   There are times, however, that those assets will be subject to litigation, which can result in a freeze of those assets and their disposition by a probate judge.

Emotional distress of grieving can get mixed up with actual probate disputes.  Ask for competent probate service to avoid the stressful parts of probate and estate law.   One of the things you should do if a relative has passed away, is to write your own will and trust to make sure your estate does not go through probate.   Resolve family conflicts before death for best results. 

Because many conflicts among children revolve around gifts and loans, when it comes to gifts to children, and loans to your family members, leave very specific instructions and promissory notes in your safe for your trustee.   Pay attention not just to the promissory note, but to the deed of trust or the security document which secures the note.   Great estate planning lawyers, plan for your gifts and loans with specific documentation.   You should also get income tax advice about the results of cancelling a child’s loans, to avoid bad results for your kids.

Debt planning and judgment planning in probate is a big part of an attorney’s job.  If you have an outstanding judgment, be sure to tell you probate attorney about it, so that a plan can be created regarding that judgment.   You should maintain all documentations regarding any lawsuit that resulted in a judgment.   Creditor claims can be objected to by the executor, but your executor must have documents and evidence in the event of a creditor law suit.

By: Mina N. Sirkin, Probate Attorney in Los Angeles County Ca who regularly writes about California Probate issues and estate planning.  Call Estate and Probate Attorneys at Sirkin Law Group, P.C. at 818.340.4479 or email us here.

CCP 998 and Probate Law in California – New Case Law 2018

CCP 998 and Probate Law in California – New Case Law 2018

 

Filed 11/29/18

 

CERTIFIED FOR PUBLICATION

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT

(Placer)

 

 

 

AMANDA MELESKI,

 

Plaintiff and Appellant,

 

v.

 

ESTATE OF ALBERT HOTLEN,

 

Defendant and Respondent.

C080023

 

(Super. Ct. No. SCV31995)

 

APPEAL from a judgment of the Superior Court of Placer County, Mark S. Curry, Judge. Reversed with directions.

 

Arnold Law Firm, Anthony M. Ontiveros; and Leslie Mitchell for Plaintiff and Appellant.

 

Spinelli, Donald & Nott, Ross R. Nott and Alison W. Winter for Defendant and Respondent.

 

This case involves a procedure by which an insurance company, as the entity controlling the litigation and incurring the risk of loss, is a de facto party under Probate Code sections 550 through 555 in “an action to establish [a] decedent’s liability for which

 

the decedent was protected by insurance” (Prob. Code, § 550),1 and thus also is a party under Code of Civil Procedure2 section 998 that must pay specified costs after rejecting a reasonable settlement offer.

Amanda Meleski was injured when Albert Hotlen ran a red light and collided with her vehicle. Unfortunately, Hotlen was deceased at the time of the lawsuit, and he had no estate from which she could recover. However, Hotlen had purchased a $100,000 insurance policy from Allstate Insurance Company (Allstate) covering the accident.

Meleski brought her action pursuant to Probate Code sections 550 through 555, which allowed her to serve her complaint on Allstate and recover damages from the Allstate policy, but limited her recovery of damages to the policy limits.

Meleski attempted to settle the matter before going to trial by making an offer pursuant to section 998 for $99,999. The offer was not accepted, and at trial a jury awarded her $180,613.86. Because the offer was rejected and Meleski was awarded judgment in excess of her offer to compromise, she expected to recover her costs of suit, the post offer costs of the services of expert witnesses, and other litigation costs.

Meleski argued that she should be able to recover costs in excess of the policy limits from Allstate, since it was Allstate that had refused to accept a reasonable settlement offer prior to trial.  The trial court disagreed, and Meleski filed this appeal. She argues Allstate is a party within the meaning of section 998 for purposes of recovering costs, and that such costs are recoverable from the insurer despite the limitation on the recovery of “damages” found in Probate Code sections 550 through 555.

 

 

  • Under this statutory scheme, the estate must be named as the defendant, but service is on the insurance company. (Prob. Code, § 552, subd. (a).) “A judgment in favor of the plaintiff in the action is enforceable only from the insurance coverage and not against property in the estate.” (Prob. Code, § 554, subd. (a).)
  • Undesignated statutory references are to the Code of Civil

 

“ ‘[Costs] constitute no part of a judgment at the moment of its rendition……. ’

[Citations.]” (Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 677.)

We agree and shall reverse the judgment. Even though the decedent’s estate is the named defendant in actions under Probate Code sections 550 through 555, this is a legal fiction. The insurance company accepts service of process, hires and pays for counsel to defend the action, makes all decisions regarding settlement of the litigation, is responsible for paying the judgment in favor of the plaintiff if such judgment is rendered, and makes the decision whether or not to appeal an adverse judgment. There is no actual person or entity other than the insurance company to do any of this. This is a reality we will not ignore. Moreover, we find it manifestly unfair that section 998 could be employed by Allstate to recover costs from the plaintiff (which costs it would have no obligation to pay to the estate), but Allstate would have no corresponding responsibility to pay costs merely because it is not a named party.

FACTUAL AND PROCEDURAL BACKGROUND

Meleski suffered physical injuries in a vehicle collision with Albert Hotlen. When Meleski’s attorney attempted to serve the summons and complaint on Hotlen, he was informed Hotlen had died. Hotlen was insured by Allstate at the time of the collision.

When Allstate refused to tender the policy limit of $100,000, Meleski amended the complaint to name the estate of Albert Hotlen as the defendant in the action. The parties agree this was done pursuant to Probate Code sections 550 through 555, which allow an

action to establish a decedent’s liability for which the decedent was covered by insurance to be continued against the estate without the need to join the decedent’s personal representative or successor in interest. (Prob. Code, § 550, subd. (a).)  Under this statutory scheme, the estate must be named as the defendant, but service is on the insurance company. (Prob. Code, § 552, subd. (a).) Any judgment in such an action does not adjudicate rights by or against the estate, unless the personal representative of the estate is joined as a party. (Prob. Code, § 553.) Also, unless the personal representative

 

is joined as a party, no damages may be recovered outside the policy limits. (Prob. Code,

  • 554, subd. (a).) A judgment in favor of the plaintiff in the action is enforceable only from the insurance coverage and not against the estate. (Ibid.) In this case, Hotlen did not leave an estate.

Meleski sent an offer of compromise pursuant to section 998 for $99,999, which was one dollar less than the policy limits. The offer provided that each party would bear its own costs, interest, and attorney fees. The offer was served on Allstate. Allstate did not accept the offer. Instead, defendant sent its own section 998 offer of compromise for

$40,000, with each side to bear its own costs and fees. Meleski did not accept the offer, and the matter went to trial.

The jury returned a verdict for Meleski and found her total damages to be

$180,613.86. Judgment was entered in Meleski’s favor in the amount of $180,613.86, plus interest and costs. Following the verdict, Meleski filed a memorandum of costs seeking to recover expert witness fees and other litigation costs pursuant to section 998. These amounts totaled $66,017.08. Defendant responded by arguing, in a motion to strike costs, or tax costs, that its liability was limited to the policy limits, pursuant to Probate Code section 550 et seq.

The trial court agreed with defendant that Meleski’s recovery was limited to the policy limits of $100,000. Defendant also moved for a new trial for excessive damages. The trial court denied this, stating “there is no evidence the jury’s verdict of damages was excessive or unreasonably high given the underlying facts of the case. Rather, judgment must be reduced, as a matter of law, under Probate Code section 554, because the judgment is enforceable only up [to] the maximum insurance coverage, in this case

$100,000.” The trial court found that whether Meleski was entitled to costs pursuant to section 998 was a moot point, since the judgment was limited to $100,000. In any event, the trial court found that section 998 was applicable to the case, and that the costs

 

submitted by Meleski were reasonable and appropriate, and that Meleski would have been entitled to the requested costs had there not been an insurance cap.

DISCUSSION

Meleski argues Allstate was obligated to pay an award of costs under section 998, that Allstate was a party pursuant to Probate Code sections 550 through 555 and section 998, and that relieving insurers of the obligation to pay costs in this circumstance would conflict with the Legislature’s intent in passing section 998. We agree.

Defendant argues Allstate cannot be forced by section 998 to pay costs because it was not a party to the action, and that in any event Probate Code sections 550 through 555 limit the amount a plaintiff can recover to the coverage limits of the decedent’s policy. We address each of these claims in turn.

I

Allstate Is a Party for Purposes of Section 998

Section 998 provides in pertinent part that prior to commencement of trial, “any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time.” (§ 998, subd. (b), italics added.) If the offer is not accepted within 30 days of being made, it is deemed withdrawn. (§ 998, subd. (b)(2).) “If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding . . . the court . . . in its discretion, may require the defendant to pay a reasonable sum to cover post offer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial . . . , or during trial . . . , of the case by the plaintiff, in addition to plaintiff’s costs.” (§ 998, subd. (d).)

The purpose of section 998 is to encourage settlements. (Santantonio v.

Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 113.) The statute

“ ‘achieves its aim by punishing a party who fails to accept a reasonable offer from the

 

other party.’ (Original italics.) [Citation.]” (Ibid.) The policy behind section 998 is “plain.” (Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 804.) “It is to

encourage settlement by providing a strong financial disincentive to a party–whether it be a plaintiff or a defendant–who fails to achieve a better result than that party could have achieved by accepting his or her opponent’s settlement offer. (This is the stick. The carrot is that by awarding costs to the putative settler the statute provides a financial

incentive to make reasonable settlement offers.)” (Ibid.) The policy in favor of

settlement “primarily is intended to reduce the burden on the limited resources of the trial courts. The trial of a lawsuit that should have been resolved through compromise and settlement uses court resources that should be reserved for the resolution of otherwise irreconcilable disputes.” (Wilson v. Wal-Mart Stores, Inc. (1999) 72 Cal.App.4th 382, 390-391.)

Obviously, since the purpose of section 998 is to encourage settlement by punishing the refusal of a reasonable settlement offer, it is directed at the entity that

(1) controls the litigation, and (2) will incur the risk of loss from section 998 if the gamble to force the other side to trial is not successful. Section 998 refers to this entity as the party because in nearly every circumstance, the party is the entity controlling the litigation and incurring the risk of loss. The case before us is different because of Probate Code sections 550 through 555.

Probate Code section 550, subdivision (a) provides that “an action to establish the decedent’s liability for which the decedent was protected by insurance may be commenced or continued against the decedent’s estate without the need to join as a party the decedent’s personal representative or successor in interest.” Probate Code section 552 provides that the named defendant in such an action shall be the decedent’s estate, but summons shall be served on the insurer. The proceedings are conducted as if the action were against the personal representative of the estate; however, Probate Code

 

section 553 provides that unless the personal representative is joined as a party, a judgment does not adjudicate any rights against the estate.

Unless the personal representative is joined as a party or the plaintiff files a

creditors’ claim in probate, the damages sought in the action must be within the coverage limits of the policy, or recovery in excess of the limits is waived. (Prob. Code, § 554.)

“A judgment in favor of the plaintiff in the action is enforceable only from the insurance coverage and not against property in the estate.” (Prob. Code, § 554, subd. (a).) Thus, by naming the estate as the defendant without joining the estate’s personal representative or filing a creditors’ claim with the estate, Meleski agreed to limit her recovery of damages against the estate to the policy limits.

Even though Hotlen’s estate was the named defendant in the action, the estate was not really a party because it is not a legal entity. “The ‘estate’ of a decedent is not an entity known to the law. It is neither a natural nor an artificial person.  It is merely a name to indicate the sum total of the assets and liabilities of a decedent……… [Citation.]

In order for a civil action to be prosecuted, there must be some existing entity aimed at by the processes of the law, and against whom the court’s judgment will operate.” (Tanner

  1. Estate of Best (1940) 40 Cal.App.2d 442, 445.) In this case, Hotlen left no assets, so

there was actually no “estate” for Meleski to sue. Although the attorney representing the defense in this case purported to represent the estate of Hotlen, the summons, complaint, and offer to compromise were all served on Allstate’s agent for service of process.

Allstate provided the defense to the estate. As there was no estate representative named, Allstate was in complete control of the litigation, and was the only litigant for the defense.

We consider Allstate a party for purposes of section 998 because, “[a] person who is not a party to an action but who controls or substantially participates in the control of the presentation on behalf of a party is bound by the determination of issues decided as though he were a party.” (Rest.2d Judgments, § 39.)

Not only did Allstate have control of the litigation of this matter, it also was the only entity opposing Meleski that risked losing money in the litigation.  The named party, the estate, was not at risk for payment of damages, which were limited to the Allstate policy. (Prob. Code, § 554.) “Unless the personal representative is joined as a party, a judgment in the action under this chapter . . . does not adjudicate rights by or against the estate.” (Prob. Code, § 553.) It is a legal fiction that the estate is the party. In actuality, Allstate is the party litigating the case, inasmuch as it alone is at risk of loss and it alone controls the litigation.

 

We disagree with defendant’s statement that by holding Allstate accountable as a party, we would render the insurer liable for the insured’s conduct beyond the contractual bargain between the insured and the insurer. Not so. By enforcing the terms of section 998 against Allstate, we are holding Allstate accountable for its own actions in failing to accept a reasonable settlement offer.

We are aware that Smith v. Interinsurance Exchange (1985) 167 Cal.App.3d 301, 304, held that the predecessor to Probate Code sections 550 through 555 (Prob. Code, § 721) did not make the insurer a responsible party to the action, despite the fact that it required the insurer to accept service of the complaint and defend on behalf of the estate. However, the particular question there was whether the plaintiff could sue the insurer for unfair claims practices and the estate to establish the decedent’s liability in the same action. (Smith, at pp. 302-303.) The court held that trial against the insurer must be postponed until the liability of the insured is first determined. (Id. at p. 304.) The case was not concerned with section 998, the goal of which is to punish a litigating party for refusing to accept a reasonable settlement offer.

In this particular case, defendant would have us hold that no entity defending the matter had an obligation to pay costs pursuant to section 998 for failure to accept a reasonable settlement offer. The effect here was that Allstate could refuse a reasonable 998 settlement offer, forcing the matter to trial with no risk of liability for statutory costs

 

beyond the policy limits. On the other hand, defendant made its own 998 offer to compromise, and had the judgment been more favorable to defendant than the offer, Allstate would have been able to recover its litigation costs. Such asymmetry is contrary to section 998’s language and purpose. (Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1115.)

Defendant’s position is completely contrary to the purpose of section 998.

“Ordinarily, if the statutory language is clear and unambiguous, there is no need for judicial construction. [Citation.] Nonetheless, a court may determine whether the literal meaning of a statute comports with its purpose. [Citation.] We need not follow the plain meaning of a statute when to do so would ‘frustrate[] the manifest purposes of the

legislation as a whole or [lead] to absurd results.’ ” (California School Employees Assn.

  1. v. Governing Board (1994) 8 Cal.4th 333, 340.) We conclude that a narrow reading of the term “party” under these circumstances to exclude Allstate would frustrate the manifest purpose of section 998 and lead to absurd results. Accordingly, Allstate is a party for the purpose of section 998.

II

Probate Code Section 554 Does Not Limit Recovery of Costs from Insurer Probate Code section 554, subdivision (a) provides in pertinent part: “[E]ither the

damages sought in an action under this chapter shall be within the limits and coverage of the insurance, or recovery of damages outside the limits or coverage of the insurance shall be waived. A judgment in favor of the plaintiff in the action is enforceable only from the insurance coverage and not against property in the estate.” Defendant argues this section means that the judgment is limited to the policy limits. We disagree.

Probate Code section 554 limits the amount of damages that can be recovered to the policy limits. It further provides that none of the judgment can be recovered from the property of the estate. It does not provide that a plaintiff may not recover costs in excess

 

of the policy limits from the insurer for failure to accept a reasonable offer of compromise.

Probate Code section 554 limits damages to the amount of the policy limit. But, costs are not damages. “It is established that the right to costs is statutory and that costs ‘are allowed solely as an incident of the judgment given upon the issues in the action.

[Citation.] . . .  They constitute no part of a judgment at the moment of its rendition……. ’

[Citations.]” (Folsom v. Butte County Assn. of Governments, supra, 32 Cal.3d at p. 677.) Costs recoverable under section 998 are set forth in section 1033.5. They include,

inter alia, filing, motion, service, ordinary witness and jury fees. These costs are

recoverable by a prevailing party “as a matter of right” unless “otherwise expressly provided by statute.” (§ 1032, subd. (b).) “Thus, the requirements for recovery of costs and fees under section 998 must be read in conjunction with section 1032[, subdivision] (b), including the requirement that section 998 costs and fees are available to the prevailing party ‘[e]xcept as otherwise expressly provided by statute.’ (§ 1032[, subd.] (b), italics added.)” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 1000.) Probate Code sections 550 through 555 do not expressly provide that a prevailing plaintiff is not entitled to recover costs. In addition, section 998 provides the court may require a defendant who fails to obtain a more favorable judgment to pay postoffer costs of the services of expert witnesses. (§ 998, subd. (d).) Consequently, Meleski is entitled to these amounts in addition to damages as the plaintiff whose offer was not accepted by the opposition that failed to obtain a more favorable judgment. (§ 998, subd. (d).)

Citing Probate Code section 554, defendant argues that the judgment is

enforceable only from the insurance policy. Thus, even if costs are not damages for purposes of Probate Code section 554, the “judgment in favor of the plaintiff in the action is enforceable only from the insurance coverage and not against property in the estate.” (Prob. Code, § 554, subd. (a).)

 

The important qualification of Probate Code section 554, subdivision (a) is “and not against property in the estate.” Evidently, Probate Code sections 550 through 555 are concerned with limiting the estate’s liability to the policy of insurance, where a plaintiff chooses to bring a lawsuit under its provisions. The statute does not, however, limit the liability of the insurance company litigating the matter for its failure to accept a reasonable offer of compromise.

The Supreme Court has similarly held that Insurance Code section 11580.2, subdivision (p)(4), which provided that “the maximum liability of the insurer . . . shall not exceed the insured’s . . . coverage limits” does not preclude an award of costs under section 998 in excess of the policy limits.3 (Pilimai v. Farmers Ins. Exchange Co. (2006) 39 Cal.4th 133, 137.) There, the plaintiff’s uninsured motorist coverage was $250,000, but the plaintiff, after making a section 998 offer for $85,000, received an award of damages in the amount of $556,972. (Pilimai, at p. 137.) The insured claimed he was entitled to recover his costs based on section 998 in addition to the coverage limit. (Pilimai, at pp. 137-138.) The Supreme Court agreed.

The court held that the Insurance Code section’s “ ‘maximum liability’ ” provision did not expressly provide that the costs pursuant to section 998 were not recoverable. (Pilimai v. Farmers Ins. Exchange Co., supra, 39 Cal.4th at p. 144.) The court reasoned that the “ ‘maximum liability’ ” provision was intended to limit the insurer’s liability arising out of the insured’s ownership of a motor vehicle, but not to exempt the insurer from the obligation to pay costs arising out of its behavior as a litigant. (Ibid.) This reasoning applies to the facts before us. Even though the named defendant in this case is the estate, the litigant is undeniably Allstate, and Allstate is responsible for its own litigation tactics.

 

 

  • Insurance Code section 11580.2 is an uninsured/underinsured motorist

 

Allstate could have protected itself from liability for costs by accepting Meleski’s reasonable offer. By requiring Allstate to pay the amounts specified under section 998, we are upholding the purpose of that section without offending the objective of Probate Code sections 550 through 555 to protect the estate from obligations in excess of the insurance policy limits.

Because the trial court found that Meleski was the prevailing party, that her total damage award exceeded her last offer to compromise, that she negotiated in good faith, and that the amount of costs she requested were reasonable and appropriate, we need not remand the matter to the trial court but will order the judgment modified.

DISPOSITION

The order denying an award of costs from Allstate is reversed, and the judgment is modified to include an award of costs in the amount of $66,017.08 in addition to

$100,000 in damages, consistent with the views expressed in this opinion. Meleski shall recover her costs on appeal from Allstate. (Cal. Rules of Court, rule 8.278 (a)(1), (2).)

 

 

           /s/                                 Blease, Acting P. J.

 

 

 

We concur:

 

 

 

           /s/                                 Robie, J.

 

 

 

           /s/                                 Mauro, J.

Los Angeles Probate Lawyer Explains Probate Letters in California

One of the jobs of a  Los Angeles Probate Lawyer is to obtain a document called Probate Letters for his or her client in California.  Most people do not know that an executor’s duties do not start until the court issues the probate letters, which is a court form.   Probate Letters is issued after the Probate Order.   So, no Letters can be issued unless the probate judge has signed the probate order.

What can an executor do with Probate Letters?

An executor can open bank accounts and close bank accounts with Probate Letters.  Probate Letters are necessary to rekey a probate home.  You must review the Probate Letters to make sure that other boxes relevant to inability to take possession of assets are not marked.   With the property court approval or independent powers, an executor can use the Probate Letters to sell property.

What an executor can accomplish in probate, greatly depends on the content of Letters.  Depending on whether you have Letters Testamentary or Letters of Administration, the document gives you information about whether or not there is a will.  When Letters Testamentary is marked in the form, it means there is a will in existence, and the executor must follow the instructions in the will at the time of the Petition for Accounting and Final Distribution.   When there is no will, the designation of Letters of Administration is marked in the document.  When you have a Probate Administrator, then administrator then must follow California’s default probate distribution rules, called intestacy laws.   California Inheritance Laws are codified in the California Probate Code.

Is a photocopy of Probate Letters enough?  No, in most cases, banks, financial institutions, and title companies will require Certified Copies of Probate Letters, and not plain copies.  Los Angeles Superior Court’s Probate Filing window can assist you with obtaining certified copies when you present the case number and a fee of generally $26 or more per letters to issue a certified copy to you.

By: Mina Sirkin, Probate Lawyer Los Angeles, who regularly speaks about advanced probate topics such as Probate Letters and their effect on managing probate assets and property in Los Angeles Ca.  Contact Mina Sirkin at 818.340.4479 or email here.

#LosAngeles #Probate #Lawyer

Wills, Estate, and Probate: A Brief Overview of the Probate Law in Ca

A Brief Overview of the Probate Law in Ca & What it Entails to act as an executor of someone’s will.

Coming to terms with the death of a loved one at times may seem painful. Still, it’s an inevitable part of life that we all would likely face at some points in our lives. Along with the trauma, you’ll still have to undergo some legal process. One of these is the probate of wills and estate.

As it turns out, not that many people understand the probate process. To some, it comes across as frightening or unfamiliar. We’ll be discussing this process in here. This will broaden your knowledge of the process so you can be prepared when you finally have to face it.

What is Probate Law in Ca?

Probate is basically the legal process through which the estate or assets of a deceased person gets distributed, regardless of whether the deceased left a will behind or not. In the event the deceased person left a will, the court still oversees the process of locating the decedent’s assets, settling outstanding bills, whether these are taxes or debts, and thereafter, distribute the remainder of the estate to beneficiaries as their inheritance.

Why Do Estates Have to Go through the Probate Process in most cases?

The probate proceedings usually do a good job of preventing fraud, but most importantly, the process makes sure the legitimate debts of the decedent are paid, as well as his or her heir and beneficiaries.

After a person dies, their assets get frozen until certain conditions are met.  The freeze excludes assets that pass by contract, such as life insurance, or accounts with beneficiaries.  Probate starts with the court’s authentication and decision on whether the will is valid, with an opportunity to others to speak on the validity of the will. Every person and parties involved will also get informed and those who have a right as heirs or may be affected, can file objections to the admission of the will, and a will contest.

Properties in the deceased person’s name or estate will need to be identified and appraised, which process is called an inventory.  Outstanding tax bills and creditor debts would have to be identified, accepted or rejected, and settled as well.   There is a claims period for all creditor claims. Once all necessary conditions have been satisfied and accounted for, the court will then issue an order to distribute the remaining assets to the rightful beneficiaries and/or the surviving heirs.

When is Probate Required under California Law?

As it turns out, not every asset goes through the probate process. Legally “small” estate, joint tenancies, payable on death accounts, community properties with right of survivorship, trusts, and beneficiary designations such as insurance policies are usually exempted from the process.   California’s threshold for no probate is $150,000.

Although each state has their own laws that govern the processes involved in probate as well as what goes through the legal process, the steps involved are usually very similar in most cases. These laws are outlined in the estate’s “probate codes” as well as the laws for “intestate succession” in the event the deceased left no will behind.   California’s small estate affidavit is usually used to collect personal property of the deceased, where the probate estate is valued under $150,000.

Safekeeping of the Will and the Probate in Los Angeles County

We determine if there a will exists first.  Because the probate process usually begins with the filing of the will for safekeeping in the local probate court, it is important to identify the local court where the deceased lived before his or her death.  This is normally followed by a petition for probate as well as the appointment of an executor. In case there is no will, the court would appoint a personal representative.   The term personal representative and executor are meaningful when the court actually appoints someone in that position.  Just because you are named as an executor, it does not make you an executor without the court appointing it.  These executors would then be issued “Letters Testamentary” that grants them the legal authority to act on behalf of the deceased’s estate.

The technical part of probate process also includes a notice of probate in a local newspaper in the deceased’s local community.    Creditors are given a notice that sets the time by which they have to file their claim.   Most often, this deadline is missed.. The executor, as well, is required to file an inventory of the assets in the deceased’s estates before the court not longer than four months after their appointment.

Once all taxes and outstanding debts have been settled, a petition to close called the final account and petition for distribution will have to be filed before the court. The estate court thereafter issues an order to allow the executor to distribute the remaining assets to beneficiaries as laid out in the will, or to the surviving heirs at law, if there is no valid will in existence. Although many executors usually forgo their fees, they are entitled to be paid for their services.   If you are paid as an executor, you must declare that fee on your income tax return as income

The process may seem challenging but getting step-by-step legal assistance from a qualified specialist attorney can help so much in simplifying the process. However, it’s always good to embrace the process with preparedness and a good understanding of what your probate journey.

Mina Sirkin is an expert in Ca Probate Law and is Board Certified as a Specialist by the State Bar of California in Estate Planning Probate and Trust Law in Los Angels Ca.  Call 818.340.4479 to discuss law law and probate in Ca.

Key Things To Note When You Are Acting as a Successor Trustee of a Trust

When you act as a successor trustee of a trust, you will want to know the potential errors to avoid with respect to trusts.  Keep in mind that the focus goal of a trust is to ultimately distribute the trust assets to the beneficiaries.   Along that road, you have duties that must be kept and beneficiaries who will be looking over your shoulder when you act.

What information must you give a beneficiary when you act as a trustee?

California trust law requires that a successor trustee give reasonable information to the beneficiaries of the trust.   What is this magical reasonable information?  Reasonable information is the type of information which the beneficiary needs to know to make a logical decision about the consequences of your action with respect to the trust.  Requesting a copy of the trust is a reasonable request for information. For example, when you go to sell a property of the trust, you will want to give notice of proposed action to the beneficiary, so he or she can determine if he agrees or disagrees with your sale.   A duty of accounting is also on you as a successor trustee.

When do you have to give the information to the beneficiary?

The information has to get to the beneficiary in a timely way so that the beneficiary has sufficient time to get legal advice and to communicate his or her decision with you.   The law requires that you give 45 days when you send a notice of proposed action.   To expedite a trust sale, you can pick up the phone, explain the terms, and then send out the notice of prosed action.   This eases the way to a successful transaction as the beneficiary will see that you are engaging his or her cooperation.

What happens if you don’t provide the necessary data to the beneficiaries?

If you take an action without giving sufficient notice, the beneficiary can object to your action at the time of your accounting.  Don’t wait.   Send notice, email and call beneficiaries to keep them in the loop of all transactions in the trust.  Simple positive gestures by a successor trustee to involve the beneficiaries will result in positive outcomes most of the times.  If you are asked about a copy of a trust and do not comply, the beneficiary can compel this in court and ask for attorney’s fees.

You should get advice from a trusts and estates attorney in Los Angeles before trouble ensues!

Trusts can be complicated to administer.  Your trusts and estate administration attorney can give you tips before trouble arises.   Asking for advice is the best remedy to prevent lawsuits from occurring.  So, get advice, document the advice, and follow up with recommendations of your trust lawyer in Los Angeles.   Your will be thankful that you obtained the advice before the case gets in the Los Angeles court.

How much can you charge as your trustee’s fees as a trustee of a trust, when you become a successor trustee?

Reasonable fees depend on the amount of work and complications of trusts in California.   In most cases, 1-1.5% are common trustees fees.   In other cases, the work my require many hours.  In all cases, you should log and track your time as a successor trustee.  This avoids beneficiary disputes when a beneficiary claims that your trustees fees are excessive.

Call Mina Sirkin, Trusts Attorney Los Angeles at 818.340.4479 or email us at Info@SirkinLaw.com.

#trustadministration #trustsattorney #trustsincalifornia

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How Technology is enhancing the lives of elderly in 2018

How technology is enhancing the lives of the elderly

As we grow old, we start losing your physical and mental abilities. Many older adults become dependent on the caretakers or other family members. They also get a bit isolated from society; they socialize less. Fortunately, improvements in technology is going to change that all, forever.

Here we share some of the technologies with the capacity to change the way elderlies live. They can help improve the lives of older adults, make them more independent, and can even take care of their physical and psychological health.

  • Personal assistant– it may be called “Alexa,” “Siri,” “Cortana,” or “Google assistant,” but basically all of them are similar with a bit different abilities. All of them are affordable, embedded in commonly available

These assistances come first in our list for a reason. Since, these assistants are most probable to get human-like intelligence in the near future. They can provide information, call for help, reserve a ticket, play the music, control your home, keep an eye on things.

Best is yet to come, as these assistants are learning to carry out continuous humans-like conversations. It means that they would not only assist, but take psychological care of elderlies.

Though initially they were created for masses, but now companies are tweaking them to make more friendly to elderlies, thus say “Help,” and they would do whatever is required1–3.

  • Wearables that measure vitals– these devices are getting smarter, feature rich with each year. They can measure heart rate, energy spent, distance walked, and much more. These smart wearables can motivate adults to stay active and healthy4.

However, more important is the inclusion of complex sensors in these devices. Along with the integration of AI (artificial intelligence), and big data.

Some of the high even devices can already monitor respiration rate, body temperature, heart rate, take ECG. Recently introduced Apple watch can detect fall, and call help automatically5.

Future wearables would have more complex biosensors; they would be able to do many blood tests, when and as required. These wearables will be powered by AI and will be able to help elderlies in numerous ways. They would give health advice, even provide treatment. What we are seeing is just a beginning, wearables would change the way elderly care works.

  • Smart wheelchairs– mobility is a huge problem among so many adults. Motor-powered wheelchairs controlled by joysticks are already a common thing. However, future wheelchairs would differ.

Already many companies are working on self-navigating wheelchairs. Imagine a chair that can take you just anywhere on voice command, gesture, or even on thought. Yes, some of the future wheelchairs would be able to read your thoughts, navigate, and selfdrive6,7.

  • Uber of elderly care– many older adults, either do not need or cannot afford full-time Uber is known for creating disruptive technology in transportation, bringing down the costs of traveling.

In recent years many companies have introduced elderly home care based on Uber’s model. It means that you can call for help only when required. These companies are providing specialists for every need. Thus the quality of service is much better than that offered by a dedicated single home care provider, and yet it comes at a much lesser cost.

So download the app or save the number of such agency. They can send you a person to walk with, help with home tasks, provide physiotherapy, do other cores, whenever it is needed. Honor is one of the leading companies in the US in the sector8,9.

  • Artificial intelligence– many companies are working to create artificial IBM is already working on several pilot projects. The company installs numerous sensors in home, like a motion sensor, flush-detection sensor, a sensor to detect bed movement, air quality sensors. These systems are powered by IBM Watson. Based on the person’s behavior system is able to predict health problems, and call for help if needed10.

Companies like IBM or Google are paying massive attention to technologies that can help predict behavior, health risks, thus providing support proactively.

  • Medication reminders– pillboxes have long been used to promote compliance and improve treatment outcomes. But smart pillboxes are intelligent; they can remind, can alert about double doses. If misplaced they can let you know their position. They can even send reminders on your phone. If needed they can ask other family members for help. When used along with apps, these pillboxes can be really beneficial11.
  • Smart homes– may help elderlies stay independent for much longer. The smart home is not a single technology, rather a name given to a cluster of devices. If put to use in a proper way, these technologies can get done most of the home tasks.
    • Smart thermostat- like Ecobee can control the temperature of all the rooms; it has Alexa inbuilt, it means that it can listen to you, can give other information.
    • Robots that clean home– cleaning house is one of the biggest challenges for adults living alone. They do not have strength and stamina to keep the home Fortunately, there are many robots that can do the job, Roomba is one such example. These robots are getting better with each day. These robots are becoming more aware of the environment, can be readily controlled through your smartphone.
    • Video doorbell with smart lock- many times, it is extremely difficult for some older adults to open the door. However, intelligent video doorbells make that process quite easy. A person can see the visitor through a cell phone, can talk, and decide whether to open the door or not. All this can be done without even moving.

We have mentioned here some of the most common technologies available. However, things are changing fast. Nowadays, there are so many things possible. Intelligent devices can help you do just anything. Some companies are even working on devices that can read thoughts so that people who cannot move or speak can live independently.

Mina Sirkin, conservatorship attorney says “assistive technology can help in avoiding conservatorships for adults in Los Angeles and Ventura County.”  Consult with Mina Sirkin, Conservatorship Specialist in LA and Ventura County.  Call 818.340.4479 or by private email to this email here.  Conservatorship attorney service in Thousand Oaks, Westlake Village and Ventura County courts.

References

  1. BizTech JVWJ is the senior web editor for, technology H magazines I her six years as a journalist she has covered everything from aerospace to indie music reviews-but she is unfailingly partial to covering. Virtual Assistants Help Seniors Make the Most of Their Golden Years. Technology Solutions That Drive Healthcare. https://healthtechmagazine.net/article/2017/07/virtual-assistants-help-seniors-make-most-their-golden-years. Published July 31, 2017. Accessed November 8, 2018.
  2. Coombs B. How Alexa’s best skill could be as a home health-care assistant. https://www.cnbc.com/2017/08/09/how-alexas-best-skill-could-be-as-a-home-health-care-assistant.html. Published August 9, 2017. Accessed November 8, 2018.
  3. Jacobson J. Google Assistant Gets ‘Help’ Command for ‘Smart Senior Living.’ https://www.cepro.com/article/google_assistant_gets_help_command_for_smart_senior_living. Accessed November 8, 2018.
  4. How Wearable Technology Is Giving Seniors Their Independence Back. Samsung Business Insights. December 2017. https://insights.samsung.com/2017/12/27/how-wearable-technology-is-giving-seniors-their-independence-back/. Accessed November 8, 2018.
  5. Use fall detection with Apple Watch Series 4. Apple Support. https://support.apple.com/en-us/HT208944. Accessed November 8, 2018.
  6. Rabhi Y, Mrabet M, Fnaiech F. Intelligent Control Wheelchair Using a New Visual Joystick. J Healthc Eng. 2018;2018. doi:10.1155/2018/6083565
  7. Intelligent Wheelchair Project at MIT. http://rvsn.csail.mit.edu/wheelchair/. Accessed November 8, 2018.
  8. Better care together | Honor. https://www.joinhonor.com/. Accessed November 8, 2018.
  9. Honor: the next “Uber for elderly care” – Digital Innovation and Transformation. https://digit.hbs.org/submission/honor-the-next-uber-for-elderly-care/. Accessed November 8, 2018.
  10. AI technology brings innovation to elderly care. Client Success Field Notes. https://www.ibm.com/blogs/client-voices/ai-technology-innovation-elderly-care/. Published April 17, 2018. Accessed November 8, 2018.
  11. Memo Box Smart Pillbox: Award Winning Pill Organizer & Reminder. Tinylogics. https://pillbox.tinylogics.com/. Accessed November 8, 2018.

Family member generally don’t know the right time to file for a conservatorship

Do you have a family member who is incapacitated and have you thought about filing a conservatorship? How do I know if It is the right time to file an application for a Conservatorship?  We take steps every day to help protect and assist our friends and family members, and look for ways to avoid conservatorships.  These measures can range from a simple phone call to providing daily transportation to medical appointments or errands to our elder parents and disabled loved ones.  In some unfortunate circumstances, this type of informal help may not be enough.

A conservatorship is a legal tool you can use to help people who will not accept informal help, or cannot protect themselves from their circumstances or from others who want to take advantage of the.   When you apply for a conservatorship in court, the order of the conservatorship court lets you formally take over the financial or daily affairs of your friend or family member who is no longer able to care for him or herself.

Becoming a conservator requires serious thought and a whole lot of pre-planning.  It is a serious responsibility, as the conservator will be responsible for the conservatee with some supervision by the probate court.

Remember what a power of attorney does?  Well, a conservator does all that an agent under a power of attorney does, plus more, all under the view of the court.   The conservatorship takes away the informality of a power of attorney and makes the conservator report to court for his or her actions.

When you have a young adult who has turned 18, or above, and who cannot make medication decisions, or manage his or her life, a limited conservatorship may be useful.  A limited conservatorship is generally favored by the court, as they will be narrowly tailored to provide as little restriction as possible for the conservatee.    There are usually limited powers.  One thing that a limited conservatorship and a probate conservatorship cannot do for people under 65, is to administer psychotropic medicatin against the conservatee’s wishes.  That is reserved for LPS conservatorships.

A general conservatorship is a higher level of protection and typically provides that the conservator is responsible for all aspects of the conservatee’s physical and financial care.  In cases of older adults, over 65, the conservator may ask for dementia medication orders, and even secured perimeter orders to protect the elder adult.   It is important to keep in mind when it is appropriate to ask for a conservatorship.

The essence of a conservatorship is that the potential conservatee is unable to care for him or herself properly.  Occasional errors are not good cause for conservatorships. This does not include when you simply disagree with a person’s life choices, such as when your college aged child is taking out too many student loans or your sibling is accruing too much credit card debt.  Rather, for a conservatorship to be appropriate, the conservatee must be unable to make his or her own informed life decisions.

One of the most common situations where a conservatorship is appropriate is where an aging relative has dementia or Alzheimer’s Disease.  As these illnesses progress, it can become difficult for a person to maintain appropriate day-to-day care, household maintenance, or timely paying of bills, just to name a few complications.  If your loved one is no longer able to adequately look after his or her daily needs, it may be time to talk to an attorney about getting a conservatorship for your relative.

Another common reason to request a conservatorship is when a close family member suffers a traumatic accident or injury, or illness which renders him or her unable to attend to daily needs.  Car accidents, strokes, or other injuries resulting in catastrophic brain injury can mean that you need to request a conservatorship over your loved one.

The most important inquiry is whether your friend or family member is capable of looking after his or her daily needs and affairs.  If he or she is not able to do so, a conservatorship may be appropriate. We have experience in assisting our clients with conservatorships.  Contact us at 818.340.4479 or email us at info@sirkinlaw.com today for an appointment.

Are you confused about whether you should file a conservatorship for a family member?  We help resolve problems and clear confusion about conservatorships in Los Angeles California.

Talk to us about factors to consider when you think about a conservatorship.  We can help with conservatorships in Los Angeles.

What happens when you change a pour over will to a standard will?

If you have started to think about your future and your family’s future, you have doubtless started to give serious thought to your estate plan.  Estate planning can help provide security and certainty to your family after you are gone.  Every estate plan will be different, as every family and its goals are different.  Accordingly, there are a wide variety of documents you can use to make sure you achieve your goals.  One option that can help you provide confidence for your family is a pour-over will.

Like any other type of will, a pour-over will generally works to pour the assets into the trust, if they were not so titled.  However, unlike an ordinary will, a pour-over will works in conjunction with a revocable, or “living,” trust.  In this type of estate plan, you will have already established a living trust before your death.  The living trust will name trustees and beneficiaries, provide specific instructions as to how your beneficiaries will receive the assets from your estate, and dictate how the trustee should administer and distribute those assets.  Once you pass away, your revocable trust will automatically convert into an irrevocable trust.  If you also have a pour-over will, the will transfers all your remaining assets immediate to the trust at the time of your death.  The assets will then be distributed according to the provisions contained in your trust documents.

If you change a pour over will to a regular will, you prevent the assets that are left our of the trust from flowing back to the trust.

Wills are public documents, so anyone can read your will and see which family member inherited which assets when you die.  Trusts, however, are not public documents, so distributing your assets through a trust provide a high degree of privacy.  In addition, transferring all assets to the trust means that just one document will govern the distribution of assets, simplifying the process and reducing the risk of conflicts.

Do you need help with a trust or a will?  Calling our experienced lawyer can ease your when you choose the right estate planning document to suit their needs.  Call us at 818.340.4479 today to talk about your estate and your goals.