Sometimes, people sign statutory will forms which end up being invalid in California.  Our law firm has been advising clients regarding the problems with the use of Statutory Will forms in California for over three decades.

What makes a California Statutory Will invalid?

The manner in which the statutory will is executed may itself invalidate the will.   These types of will have to be completed by the testator.  People who try to fill these out for their parents often create a problem with admission of these types of wills, when will contests come about.

Faulty execution or signing and create problems with wills.  Moreover, faulty witnessing can also lead to particular will admission problems.   For example, if the witnesses do not view the testator sign the will, and do not sign the witness provisions in presence of the testator (that is the person who creates the will), then the statutory will is not validly signed.

What else makes for a bad California Statutory Will?

The California Statutory will provisions tend to be a somewhat confusing part of California Probate Code.   While the legislature has tried to make it simple, it is actually quite complicated.   You can inadvertently mark more than one box, which invalidates that provision.  You can fail to mark a box, which then creates other problems.  More than once box checked, invalidates that gift.  No box checked invalidates the provision.  The result of invalid gifts and residuary provisions is that heirs-at-law get the estate.  The result is the same as intestacy or having no will at all.

How do you avoid problems with wills?

Having an attorney drafted will avoids the common types of problems with the statutory will.  You will get advice, and there is someone to double check every aspect of the will.   People who want to engage in self-help wills must be made aware of the potentials for problems of selt-help will forms.

Call Mina Sirkin, Los Angeles Will Attorney who is certified as a specialist in probate and estate planning to help you with problems involving statutory wills at 818.340.4479 or email: Info@SirkinLaw.com.

Is probate always necessary?  Not always.  Where there are alternatives to probate that have been set up during a person’s life, probate can be avoided in most situations. Ask us about the alternatives to probate.

How to determine if an asset needs to be probated?

First you look at the type of asset:

If the asset is of a type that can have a beneficiary, start there first.   Find out if there are any named beneficiaries.  If there are named beneficiaries who are alive, then probate would generally not ben necessary for that asset.

Then, look at the totality of assets which do not have beneficiary designations, and are not jointly owned.

If the total of those assets is below $150,000, then it is likely that no probate will be needed.

Sometimes, a probate is started for the purposes of shortening a creditor’s claim period.

Ask if there is a Trust and a Pour over will.   Sometimes we can avoid probate by bringing assets into an existing trust, even after death, via a special petition.

Call Mina Sirkin, Trust and Estate attorney in Los Angeles at 818.340.4479 or email us at info@sirkinlaw.com.

When Co-Executors Fight…

When co-executors have been appointed to manage assets of the estate, it is very common that disputes arise which need to be handled.  Unfortunately, it frequently puts the Los Angeles probate attorney in a conflict, when a dispute arises and the lawyer represents both co-executors, it creates a conflict of interest for the lawyer and brings the estate to a halt. The lawyer is then forced to advise each of his/her co-executor clients to seek separate counsel.

This can happen when the co-executors are also beneficiaries.  It can also happen when the co-executors are just administering the estate.   Examples of disputes among co-executors are as follows:

1.  Disputes about the sales price of the home.
2.  Inventory disputes.
3.  Rent collection disputes.
4.  Reimbursement disputes.
5.  Accounting Disputes.

What are some simple solutions to co-executor disputes?

Here are some of the things a co-executor can do to resolve the disputes with another co-executor:

1.  Sit down and talk.
2.  Go to mediation.
3.  Have a neutral executor appointed, such as a professional fiduciary.
4.  Agree to submit the matter for a Petition for Instructions to the court.
5.  Agree to submit the disputed items to a probate arbitrator.

What really happens when co-executors fight?

When two co-executors fight, they cannot be represented by one lawyer.  Ultimately, each will have to seek separate probate lawyers which increases the inefficiency in managing the probate estate and the potential cost of litigation.    Selecting an informal tie-breaker before co-executors are appointed can help in managing and resolving potential disputes.  If you are a co-executor, we encourage you to sit together and come up with a plan on how to resolve any c-executor disputes.

If you are having trouble with another co-executor, call Mina Sirkin, probate attorney in Los Angeles who is a Board Certified Specialist helping people resolve probate disputes.  Call 818-340-4479 or Email.

On November 29, 2017, California Court of Appeal published a new opinion regarding the requirements of the enforcement language in settlement agreements.

In SHAUNAK SAYTA, Plaintiff and Appellant, v. EDMUND CHU et al.,, the Court was asked to enforce a written settlement agreement.   The court refused to enforce the settlement agreement because the parties failed to request retention of jurisdiction at a hearing and in the settlement agreement, before the dismissal.  The court based its decision on the fact that it lacked jurisdiction to entertain the motion because the language in the settlement was insufficient.

The Court concluded that the language of the settlement agreement musts state that the parties request that the court retain jurisdiction to enforce the settlement.   The court stated that “By its very terms, section 664.6 is limited to settlements reached in pending litigation.” (Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 206 (Viejo Bancorp).) . Therefore, if you dismiss the case before the request is made, then the court loses jurisdiction.

Here the court based its conclusion that, . . . the court lost subject matter jurisdiction when the parties filed a voluntary dismissal of the entire cause. Since subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel, the court cannot ‘retain’ jurisdiction it has lost.” (Viejo Bancorp, at pp. 206–207.)

The moral of the story is, that the Parties during some proceeding before a dismissal, must request that the court retain jurisdiction.   This case is important for all civil, probate and trust settlements, and for attorneys to review.   For probate and trusts attorneys, it appears that the court wants parties to appear, to ask the court to retain jurisdiction to enforce, and not to dismiss the case before the court makes an order retaining jurisdiction for enforcement purposes.

Call Mina Sirkin, probate attorney about probate and trust settlement requirements in Los Angeles California. Call 818.340.4479.

Probate Litigation Los Angeles  

Litigating a Trust Case? If you would like to get more information regarding Trust litigation in Los Angeles, California, click here.  trustlitigationlosangeles.com

Who should you call for Probate in Los Angeles?​

PROBATE ATTORNEY CONSULTATION CALLS LOS ANGELES – CALL 818.340.4479

Free Probate Attorney Call for Consultation : Call us when you need a free probate consultation.

When you need a free probate consultation regarding Wills, Probate and Estate matters in Los Angeles to evaluate your case, you should find and consult an attorney who has more than twenty years of experience inProbate in Los Angeles.  We promptly return all calls.

You should consult with our probate attorneys in the following probate estate circumstances:

1.  You believe there was fraud or forgery involved regarding a Will in Probate.

2.   You believe someone influenced the decedent to write a will or trust which he or she otherwise would not have signed.

3.   There was any type of fraud involved in an estate or by the executor.

4.    An executor has not filed an accounting within a year from the start of probate.

5.    Executor or Administrator has not filed an inventory.

6.    The elderly decedent was abused during his or her lifetime.

7.    There are assets which should belong to the estate but which someone else claims or owns.

8.    Decedent was in the middle of a sale, or transaction, and he or she died.

9.    There is sibling rivalry in the family regarding who should own the assets of a parent, or deceased person and a family member needs a free probate consultation in Los Angeles, CA.

10.  There needs to be a conservator appointed for a family member or loved one.

11.  A fiduciary, executor, administrator, trustee or agent under a power of attorney has not met his or her duties or responsibilities.

12.   Assets need to be returned to a person, estate or trust.

13.   A probate executor, trustee, conservator or power of attorney agent has not accounted or is late in accounting.

Contact or Call Mina Sirkin, Probate Law Certified Specialist Probate Lawyer  for a Free Probate Consultation in Los Angeles. Call 818.340.4479  or Email: Info@SirkinLaw.com.