Sirkin Law Trust Estate Probate Litigation Attorney

What Are the Best Litigation Resolution Tools for Trustees in Los Angeles California?

Skilled trust counsel can provide the best estate and trust litigation resolution and settlement tools for trustees in Los Angeles County California and those tools are in fact very simple in nature.   In essence, inheritance law trust settlement tools allow for communication with the beneficiary or heir which opens the door for settlements.

Taking the time to offer the simple settlement tools in trust and probate cases is well worth it, as it may save you lots of money in litigation.  Management of trustee and beneficiary disputes and their resolution involve many factors.    Just as beneficiaries are given the ability and many tools which protect them against malfeasance by trustees, so have the trustees who sometimes deal with unreasonable beneficiaries.  ADR or alternative dispute resolution works quite well in the trust litigation arena.

California fiduciaries are held to a standard of care.   Trust documents often describe the standard of care of the trustee, but where they fail to specify the care, California law states that the trustee is held to a reasonable trustee standard.   A very detailed look at the standard of care described in the trust can eliminate most issues in litigation. Many times, the trust states that the trustee is not liable for damages unless the loss has resulted from gross negligence. Gross negligence is not the same as negligence.

At the same time, where the trustee has special skills, the courts can expect the trustee to use his special skills in managing the assets of the trust.   Trustees who invest the trust's assets are held to a prudent person (Prudent Investor Rule) standard in California unless the trust specifically relieves them of that specific standard.

For example, the trust may specify that the trustee may hold a property vacant for a period of time after the death of the settlor.  

Litigation can occur where the parent has left no specific instructions before death and one child lives in the property of the parent and refuses to pay rent.

Managing expectations of the beneficiaries where one child may live in the property of the parent can be a simple task, if done when the parent is alive and competent.   For example, the trust instrument may allow any beneficiary to live in the property for a specific period of time after death of the settlor rent-free, or at a low rent.

What can a Los Angeles trustee do to manage potential disputes among a successor trustee and beneficiaries?

1.   Give Notice of Proposed Action.   For example, a trustee who seeks to charge a beneficiary rent during the period of administration, but before distribution should give Notice of Proposed Action to determine the level of potential disputes.

2.   Give Notice of Proposed INACTION.   California law allows a trustee to give Notice of Inaction where the trustee seeks not to take action on a particular issue.   For example, this can mean that even though the beneficiary may expect the trustee to rent the house, the trustee will not be renting it, because the cost of bringing it up to rent standards is too high.

3.   Seek pre-litigation mediation.    Trustees and beneficiaries who may not agree on certain issues, such as sales price, sale date and distribution date can often prevent future disputes when parties realize the cost of litigation and want to act timely to prevent harm in a declining market. There are many times in a declining market where the beneficiaries do not recognize market value as a result of a failure in communication and an early agreement regarding sales price and sales timing.

4.   Obtain instructions from the court.   A Petition for instructions is sometimes the best remedy for preventing litigation.  Before a trustee takes action, he or she can seek instructions from the court.    This can be an especially useful tool where the trustee expects disputes regarding the manner of distribution or trustee's compensation.

5.   Present a settlement agreement early.   Early mediation and early settlement offers resolve cases. Settlement agreements which involve specific actions of the trustee can be drafted quickly and prevent future inheritance law disputes on single issue disputes.  Once entered, the trustee and beneficiaries can limit the scope of the settlement, but agree on its enforcement and admissibility in the event there is a future disagreement on that issue.   A settlement agreement can be presented before mediation or during mediation and often protects all parties from significant legal fees which can be expended during litigation.

Mina N. Sirkin is a Trust and Estate Litigation Attorney in Los Angeles, California.   Ms. Sirkin is a Board Certified Specialist Attorney in Estate Planning, Probate and Trust Law by the Board of Legal Specialization of the State Bar of California.   For consultation appointments about settling probate and trust cases or litigation prevention in trust and estates, call Karen Reyes at 818-340-4479.   http://SirkinLaw.com/attorneys.html  

Mina N. Sirkin, Specialist in Trust and Probate

Law in Los Angeles Ca

Call: 818.340.4479

Email: [email protected]

"We help our clients negotiate and settle estate inheritance law cases in Los Angeles California."

What are the Most Helpful California Probate Estate Management Tips?

What are the Most Helpful California Probate Estate Management Tips?

An Expert Los Angeles Probate Lawyer Can Help You Gather the Assets, and Collect the Debts Owed to the Decedent 

The executor (Executor and Administrator) has the right to, and must take possession or control of, all the property of the decedent to be administered in the decedent’s estate and must collect all debts due to the decedent or the estate.

The Executor must Collect Rent

The executor must and is entitled to receive the rents, issues, and profits from the real and personal property in the estate until the estate is distributed.

Pay the Tax, Please!

The executor must pay taxes on, and take all steps reasonably necessary for the management, protection, and preservation of, the estate in his or her possession.  This includes, property tax, income tax, payroll tax, and estate tax.   Talk to an accountant to determine your filing requirements.

Storage 

Real property or tangible personal property can be left with or surrendered to the person presumptively entitled to it unless or until, in the judgment of the executor, possession of the property by the executor will be necessary for purposes of administration. The person holding the property must surrender it to the executor on request by the executor.

What if the executor accidentally takes over someone else's property?

A executor who in good faith takes into possession real or personal property, and reasonably believes that the property is part of the estate of the decedent, is not:

(1) Criminally liable for so doing.

(2) Civilly liable to any person for so doing.

The Executor must find out whose property it is that is being marshaled.

The executor must make reasonable efforts to determine the true nature of, and title to, the property so taken into possession.

Do you get paid as an executor, if you collected an assets, but have to give the property back?

The court may allow the executor reasonable compensation for services rendered in connection with the duties specified in this section as to property later determined not to be part of the estate of the decedent, if the court makes one of the following findings:

The executor's services were of benefit to the estate. If the court makes this finding, the compensation and the expenses and costs of litigation, including attorney’s fees of the attorney hired by the executor to handle the matter, are a proper expense of administration.

The executor's services were essential to preserve, protect, and maintain the property. If the court makes this finding, the court must award compensation and the expenses and costs of litigation, including attorney’s fees of the attorney hired by the executor to handle the matter, as an expense deductible from the rents, issues, and profits received by the executor, or, if these are insufficient, as a lien against the property.

The Executor must invest the cash in interest bearing accounts  

The executor must keep all cash in his or her possession invested in interest-bearing accounts or other investments authorized by law.  The above does not apply to the amount of cash that is reasonably necessary for orderly administration of the estate, such as money used to pay the mortgage and tax.

The Executor must recover the property of the estate  

The heirs or devisees may themselves, or jointly with the executor, maintain an action for possession of property or to quiet title to property against any person except the executor.

The Executor rights with respect to Stocks

With respect to a share of stock of a domestic or foreign corporation held in the estate, a membership in a nonprofit corporation held in the estate, or other property held in the estate, a executor may do any one or more of the following:

(a) Vote in person, and give proxies to exercise, any voting rights with respect to the share, membership, or other property.

(b) Waive notice of a meeting or give consent to the holding of a meeting.

(c) Authorize, ratify, approve, or confirm any action which could be taken by shareholders, members, or property owners.

The Executor must insure the property of the estate

The executor may insure the property of the estate against damage or loss and may insure himself or herself against liability to third persons.

The Executor must not personally profit from the estate assets 

There is a difference in acting as a beneficiary, and acting as an executor.   Executors are not allowed to personally profit from the estate increases, unless the will specifically so allows.

Some types losses are not the responsibility of the Executor

The Executor is not accountable for losses by the decrease or destruction without his or her fault, of any part of the estate.  This means market value fluctuation losses, which were not in his control, or could not be reasonably prevented.   An executor should obtain advice from a financial advisor regarding prudent investment of estate assets.

By:  Mina N. Sirkin  Probate Specialist Los Angeles, who is licensed to practice probate law in California since 1992.  Ms. Sirkin is Board Certified as a specialist in probate, estate planning and trust law in California, and a media expert in estates.   Contact us by Email our LosAngelesProbateLawyer at: [email protected] or by Telephone at 818.340.4479.

What are the Differences in Probate Limited Powers v. Independent Powers in California?

What are the Differences in Probate Limited Powers v. Independent Powers in California?

In California, Limited Powers means that the executor or administrator must obtain court confirmation of a sale/loan/option or exchange of probate real property. On the other hand, an executor with independent powers can sell probate property, but must first give notice of proposed action and obtain consent from the beneficiaries or heirs, or there must not be an objection to the action after a reasonable time.  

The four types of transactions that require court approval when there is only limited powers are:

 

(1) Sale of real property.

(2) Exchange of real property.

(3) Grant of an option to purchase real property.

(4) Borrowing money with the loan secured by an encumbrance upon real property.

The most important part of a sale of probate property is that it must first be appraised, and it cannot sell for less than 90% of the appraised value.   The 90% rule can only be modified by a court order.

Mina N. Sirkin is a probate lawyer in Los Angeles, Ca, Certified by the Board of Legal Specializations as a Probate Lawyer Specialist.   Ms. Sirkin is an expert in California Probate, LosAngelesProbateLawyer.  To learn more about our probate services, contact us at 818.340.4479 or by email at: [email protected].

Call us at 818.340.4479 to find out more about the Differences in Probate Limited Powers v. Independent Powers in California.

Mina N. Sirkin, Estate

& Wealth Planning 

Attorney Los Angeles

Woodland Hills

When can you distribute the probate estate’s assets to the beneficiaries or heirs?

When can you distribute the probate estate’s assets to the beneficiaries or heirs?

One of the largest mistakes made by executors is distributing assets to a beneficiary or heir without first obtaining a court order.   As an executor, you must wait until the court issues an order for distribution, which is normally done at the end of the accounting, before you can distribute the estate assets.   Beneficiaries may try to put pressure on you to do it faster, but you must actually wait until the court gives you the ok.  Please be sure to tell them that they must wait for a court order before they receive their inheritance.

Mina N. Sirkin is a California Probate Attorney , who is licensed to practice law in California since 1992.  Ms. Sirkin is Board Certified as a specialist in probate in California.   Our law firm can assist you with probate in California, and with obtaining the right probate order for distribution. You can reach our Los Angeles Probate Lawyer by Email at:  [email protected] or by Telephone at 818.340.4479.

How to handle the Decedent’s Creditors

How to handle the Decedent’s Creditors

Under California Probate law, one of the main duties of the executor of a probate estate is to notify the creditors of the decedent and to let them file probate creditor claims.   If you have been appointed as an executor of an estate or, as an administrator of an estate, you must gather all of decedent’s bills, and present them to your attorney who will then give them a Notice to Creditors.   There are strict timelines for creditors to file the creditor claim and serve it on the executor. If you can reasonably discovery a creditor, you should notify them of the death and notify your attorney that a creditor exists.  

In practical terms, make a folder with all of the estate's bills.   Have a running list in the front.   Check each creditor who files a claim in court.  Discuss with your attorney whether a particular creditor claim should be accepted or rejected, and the deadlines for the creditors to file.   Also discuss the ramification of rejecting the creditors, which may result in suits by the creditor to collect the claim.

California Probate Lawyer, Mina N. Sirkin is a Probate Attorney serving Los Angeles who has been licensed to practice law in California since 1992.  Ms. Sirkin is Board Certified as a specialist in probate in California.   You obtain help with probate estate creditor issues by contacting us by Email: [email protected] or by Telephone at 818.340.4479.