tag:blogger.com,1999:blog-9358998856786950972024-03-14T01:45:23.661-07:00Los Angeles Estate, Probate And Tax Law BlogSophisticated Planning As Well As Agressive Representation In Probate Litigation MattersLos Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comBlogger121125tag:blogger.com,1999:blog-935899885678695097.post-47396259460766120762016-11-26T10:06:00.001-08:002016-11-26T10:06:40.707-08:00Trump's Proposal to Repeal Estate Tax Will Not Effect More Than 99% of Americans Who Are Extempted From Estate Tax. Estate Tax Elimination Does Not Eliminate Need for Trust and Estate Planning. <div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;">
<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">If president-elect Donald Trump follows
through on his campaign promises, the estate tax will be eliminated. </span><span style="font-family: "Trebuchet MS", sans-serif; font-size: 12pt;">Currently, the
rules are straightforward: A married couple is exempt for the first $10.9
million in their estate, and they pay a 40 percent tax on the amount above
that. Mr. Trump’s </span><a href="https://www.donaldjtrump.com/policies/tax-plan" style="font-family: "Trebuchet MS", sans-serif; font-size: 12pt;">campaign
proposal</a><span style="font-family: "Trebuchet MS", sans-serif; font-size: 12pt;"> seems straightforward: Repeal the estate tax — the "death tax" in his words. There is a second part to his plan which involves keeping taxes on capital gains over $10 million when family assets are sold.</span></div>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">Back
in 2012, most tax experts considered the estate tax resolved when the
Republican-majority Congress and President Obama reached a so-called grand
bargain on taxes. As part of that deal, the current estate tax exemption was
set, with annual increases indexed to inflation. </span><span style="font-family: "Trebuchet MS", sans-serif; font-size: 12pt;">With
that agreement, more than 99 percent of Americans were exempted from the estate
tax. </span><span style="font-family: "Trebuchet MS", sans-serif; font-size: 12pt;">Last
year, for example, the IRS </span><span style="font-family: "Trebuchet MS", sans-serif; font-size: 12pt;">processed just 4,918 federal estate tax returns. Few families have more than $10.9 million in their estate.</span></div>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">But
Mr. Trump’s proposal is not a simple repeal. His plan also
said, “Capital gains held until death and valued over $10 million will be
subject to tax to exempt small businesses and family farms.” </span><span style="font-family: "Trebuchet MS", sans-serif; font-size: 12pt;">In
other words, the tax on capital gains above $10 million would have to paid only
when, or if, the assets were sold.</span></div>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">For
some accountants, the proposal brought back memories of 2010, when the estate
tax briefly expired and assets in a wealthy person’s estate were subject to
capital gains tax on the appreciated value. This proved to be a headache. Few
people keep sufficiently detailed records to find the original purchase price
on stocks or to account for improvements to properties over decades.<o:p></o:p></span></div>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">Yet
the Trump plan, as some attorneys and accountants have read it, would allow the
wealthiest heirs to never pay capital gains taxes only IF they do not sell what
they inherited. This would be difficult for those with a modest inheritance
because they generally sell and spend what they get. <o:p></o:p></span></div>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">What does this mean for the average middle class to upper class families with less than $10 million in assets upon death? Planning is a requirement for reasons other than avoiding the estate tax. Don't let the news of no estate tax allow you to put off planning since you probably were not subject to the tax in any event. And if you are so lucky to have substantial assets that could trigger the tax, different types of planning will be required. </span></div>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">Posted by <a href="http://www.moravecslaw.com/" target="_blank">Henry (Hank) Moravec III</a></span></div>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">Email: <a href="mailto:hm@moravecslaw.com">hm@moravecslaw.com</a></span></div>
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<span style="font-family: Trebuchet MS, sans-serif;">Office: 626-793-3210</span></div>
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Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-22053299593823337262016-11-25T08:25:00.001-08:002016-11-25T08:25:18.694-08:00Estate Planning Meets Retirement Planning - NYT Article on How to Give an I.R.A. to Beneficiaries Without Giving Up Control<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
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<tr><td class="tr-caption" style="text-align: center;">Kate Thornton/New York Times</td></tr>
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An interesting New York Times article "<a href="http://www.nytimes.com/2016/11/19/your-money/how-to-give-ira-to-children-without-giving-up-control.html?ref=your-money" target="_blank">How to Give an I.R.A. to Children Without Giving Up Control</a>" (11/18/16). Some may have never heard of a Trusteed I.R.A. which allows the funds to be distributed to beneficiaries and control how someone uses the money so it's not squandered or ill-spent. For clients who have large I.R.A. holdings (over $500,000), this may be a wise option or at least something to consider.<br />
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It also allows the assets in the I.R.A. account to be broken up into separate accounts for the beneficiaries. Each account can have different guidelines on when and for what distributions are made and take into account their age.<br />
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One advantage is that there is better asset protection for the beneficiaries. In 2014, the U.S. Supreme Court rule that funds held in traditional I.R.A.s that are inherited do not have the same protection as retirement assets. Another benefit is if the I.R.A. owner becomes incapacitated where the trustee can request the minimum distribution since without the owner reqeuest there can be a large penalty.<br />
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There is the option of creating a trust and putting the I.R.A. into it but that can cause issues with the I.R.A. especially where there is a spouse and can be more expensive. Trusteed I.R.A.s have management fees so that is one reason why they are usually recommended if the account is large.<br />
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Trusteed I.R.A.s have their limits and anyone thinking of a Trusteed I.R.A. should consult an experienced attorney to draft the documents, consider it in the context of retirement and estate planning.<br />
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Posted by Henry (Hank) Moravec III<br />
Email: h<a href="mailto:m@moravecslaw.com">m@moravecslaw.com</a><br />
Office: 626-793-3210<br />
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Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-17521366463617607382016-11-23T09:08:00.001-08:002016-11-23T09:08:56.334-08:00<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://1.bp.blogspot.com/-g2zPPXPGf2E/WDXMp9Iuy-I/AAAAAAAAAlw/7HShyAVO4RsEjbOTIWJkmfUizjwskmNcwCLcB/s1600/reading%2Bcinema%2Bsnack%2Bbar.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="179" src="https://1.bp.blogspot.com/-g2zPPXPGf2E/WDXMp9Iuy-I/AAAAAAAAAlw/7HShyAVO4RsEjbOTIWJkmfUizjwskmNcwCLcB/s320/reading%2Bcinema%2Bsnack%2Bbar.jpg" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">L.A. Times / Don Bartletti ~ Reading Cinemas Movie Theatre</td></tr>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">The
<a href="http://www.latimes.com/business/hollywood/la-fi-ct-reading-international-drama-20161109-story.html" target="_blank">Los Angeles Times is reporting on a family estate dispute and court drama thatis affecting the Los Angeles-based movie theater chain Reading InternationalInc.</a> which has dozens of cinemas around the world, major real estate holdings,
and a nearly 200-year history with roots in the railroad and coal business. The
adult three children of Reading’s late chief executive, James J. Cotter Sr.,
are waging a battle for control of the company. <o:p></o:p></span></div>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">This
case is more complicated than the typical estate dispute in that it involves a
public company but it has some allegations that are common to many of them such
as whether the father had capacity to amend the trust, breach of fiduciary duty
and undue influence.<o:p></o:p></span></div>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">The
Los Angeles Times reported that the issues began after James J. Cotter Sr., a
Los Angeles businessman, resigned as CEO and chairman in August 2014
because of declining health, leaving son James Cotter Jr. in charge.
Cotter Sr. died in September 2014 at age 76. Shortly thereafter, his two
daughters went to court, alleging their brother improperly convinced their
father to add him to a trust that would control the voting shares of the
company. <o:p></o:p></span></div>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">The
article notes that Ellen and Margaret Cotter’s court papers claimed that James
Cotter Jr. unduly influenced their father while he was in the
hospital after suffering a fall in his home. The daughters said their
father lacked “the knowledge and understanding necessary” to make such
financial decisions. The daughters contend that after their dad was
admitted to the hospital, their brother convinced an estate attorney to
draft an amendment to the trust that made him a co-trustee. They allege he lied
to Margaret by saying the changes were made based on videos he took
of their father expressing his wishes. <o:p></o:p></span></div>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">Distressed
over her father’s failing health, Margaret tried to convince her father to sign
the amendment, the daughters’ petition said. Cotter Sr. signed the amendment
only after Margaret begged and “tears were shed," according to the
petition.<o:p></o:p></span></div>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">Cotter
Jr. struck back with his own petition, calling the allegations against him
“nonsense” and “fictional.” He said his father was “in full control of his
faculties” when he signed the amendment to the trust and accused his sisters of
“abusing their power… and breaching their duties.” He further
contended his sisters tried to prevent him from selling his Reading
stock, in order to “choke off” funds and force him to settle. Cotter Jr. owned
about 16% of Reading’s shares as of April 2016, according to a regulatory
filing.<o:p></o:p></span></div>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">In
June 2015, the company’s board of directors fired Cotter Jr. for undisclosed
reasons and put Ellen Cotter in charge. Cotter Jr. quickly sued his
sisters and other Reading directors, accusing them of staging a “boardroom
coup” to wrest away control of the company. He said in court
documents that his sisters, and company directors loyal to them, had him
forced out because he refused an ultimatum to give up his claim to the trust.<o:p></o:p></span></div>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">He
also accused the sisters of choosing their own financial interests over the
well-being of the company and trying to use Reading resources to pay for
personal expenses, including an expensive Thanksgiving dinner for
Ellen, the company’s CEO; Margaret, its vice chair; and their mother.<o:p></o:p></span></div>
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<span style="font-family: "Trebuchet MS","sans-serif"; font-size: 12.0pt;">The
company said in a regulatory filing that “numerous of the factual allegations
included in the complaint are inaccurate and untrue,” and vowed
to “vigorously defend” against the claims. A trial date in the case has
not been set. <o:p></o:p></span></div>
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Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-34016481310135787612016-04-25T06:14:00.003-07:002016-04-25T06:14:51.331-07:00Prince May Have Died Intestate and Estate Estimated Worth Is $300 Million <table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://4.bp.blogspot.com/-dyUXFekglaI/Vx4XaBRFasI/AAAAAAAAAkw/Got5uBQ3vUIbrfg6E2ROP6H9KcwmH6YNQCLcB/s1600/prince%2Bcity%2Bhall.jpg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" height="213" src="https://4.bp.blogspot.com/-dyUXFekglaI/Vx4XaBRFasI/AAAAAAAAAkw/Got5uBQ3vUIbrfg6E2ROP6H9KcwmH6YNQCLcB/s320/prince%2Bcity%2Bhall.jpg" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Los Angeles City Hall Turns Purple In Honor of Prince</td></tr>
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<span style="font-size: large;">The untimely passing of music superstar Prince even gets to estate and probate attorneys who grew up on his music. One of the first questions estate and probate geeks ask is about his estate planning since he owned copyrights to his music, has a valuable public brand and name, and had an estate large enough to be subject to <a href="http://moravecslaw.com/TaxPlaning.html" target="_blank">estate tax</a>. </span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">The <a href="http://www.latimes.com/entertainment/envelope/cotown/la-et-0423-ct-prince-estate-20160423-story.html" target="_blank">Los Angeles Times reported that Prince's estate</a> is rumored to be worth over $300 million and that he may have died intestate (without a will or trust). While hard to imagine, it is not unusual. This would mean his sister would inherit everything as his closest heir regardless of whether he had a live-in companion or other people he wanted to provide for. </span><br />
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<span style="font-size: large;">If you have not done your estate planning, you're not alone. It is natural to put it off. Being in Los Angeles, we have had celebrity clients and Us Magazine is right in that celebrities are "like you and me." This is easy to put off since it involves planning and preparing for a time when we will not be with our loved ones. One meeting I had with a celebrity for estate planning, required me to not mention the word "death" in the meeting. Of course, I complied. Why? The important thing is helping clients have peace of mind and having the satisfied feeling that one's affairs are in order. </span><br />
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<span style="font-size: large;">Posted by Henry (Hank) Moravec III</span><br />
<span style="font-size: large;">Email: <a href="mailto:hm@moravecslaw.com">hm@moravecslaw.com</a></span><br />
<span style="font-size: large;">Office: 626-793-3210</span><br />
<span style="font-size: large;"><a href="http://www.moravecslaw.com/" target="_blank">Moravec, Varga and Mooney</a></span>Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-88890707249236034562016-04-23T10:51:00.004-07:002016-04-25T06:18:10.869-07:00What Happens When Trust Real Property Is Only Listed on a Schedule to a Trust but No Deed is Signed? Trust Litigaton, Appeal And Court of Appeal Decision Reversing Probate Court's Ruling.<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
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<a href="https://4.bp.blogspot.com/-GdMcyD_5IqQ/VxuyrrvKwSI/AAAAAAAAAkY/bpKmqxQeP9wuDS1aahU29M5lb3gX8ehYgCLcB/s1600/legacy-trust-and-wills-revocable-trusts.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="212" src="https://4.bp.blogspot.com/-GdMcyD_5IqQ/VxuyrrvKwSI/AAAAAAAAAkY/bpKmqxQeP9wuDS1aahU29M5lb3gX8ehYgCLcB/s320/legacy-trust-and-wills-revocable-trusts.jpg" width="320" /></a></div>
<span style="background: white; color: #222222; font-family: "arial" , "helvetica" , sans-serif; font-size: large;">A recent California Court of Appeal decision,
<a href="https://scholar.google.com/scholar_case?case=3167180061245774684&hl=en&as_sdt=6&as_vis=1&oi=scholarr" target="_blank"><i>Carne v. Worthington </i>(4/13/16)</a>, shows how disputes over trusts happen if one is not
careful in executing and recording all the deeds to property that are to be
part of a trust. It also shows how a relative can try to take advantage of a
failure to record a deed and how trust litigation happens and can take years to
resolve.</span><br />
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<span style="background: white; color: #222222; font-family: arial, helvetica, sans-serif; font-size: large;">This case involves a dispute over the ownership
of real property located </span><span style="font-family: "arial" , "sans-serif"; font-size: large;">on
Via Regla <span style="background: white; color: #222222;">formerly owned by
decedent Kenneth Liebler. Kenneth, who passed away in October 2012, had</span>
executed a revocable trust in 1985 and the Via Regla property was transferred
to the 1985 Trust.</span><br />
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<span style="font-family: arial, sans-serif; font-size: large;">Kenneth then executed an irrevocable trust in 2009 (the
“2009 Trust”) which stated, “I transfer to my Trustee the property listed in
Schedule A, attached to this agreement.” The sole asset listed on Schedule A
was the Via Regla property.</span><br />
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<span style="font-family: arial, sans-serif; font-size: large;">However, Kenneth did not transfer title to the Via Regla
property by a deed from the 1985 Trust to the 2009 Trust. This was an apparent
oversight. </span><br />
<span style="background-color: white; color: #222222; font-family: arial, helvetica, sans-serif; font-size: large;"><br /></span>
<span style="background-color: white; color: #222222; font-family: arial, helvetica, sans-serif; font-size: large;">After Kenneth passed away, his daughter Melanie
Carne filed a petition to confirm the validity of the 2009 Trust. A grandson, Dillon Hasting, opposed the
petition and argued that the 2009 Trust was </span><u style="color: #222222; font-family: arial, helvetica, sans-serif; font-size: x-large;">not</u><span style="background-color: white; color: #222222; font-family: arial, helvetica, sans-serif; font-size: large;"> valid because Kenneth
had not properly transferred title to the Via Regla property and that property
was the only asset in the trust. Nancy Worthington (Kenneth's former live-in companion) also opposed the petition on
similar grounds. </span><br />
<span style="background: white; color: #222222; font-family: arial, helvetica, sans-serif; font-size: large;"><br /></span>
<span style="background: white; color: #222222; font-family: arial, helvetica, sans-serif; font-size: large;">The trial probate court ruled in favor of
Worthington and Hasting which meant the Via Regla property would not be left to
the daughter. Daughter Melanie filed an appeal. The Court of Appeal reversed
the trial court and ruled in favor of Melanie. </span><span style="font-family: "arial" , "sans-serif"; font-size: large;">The
appellate court held that the language in the 2009 Trust was sufficient to
convey the property to the 2009 Trust, and Kenneth was not required to execute
a deed.</span></div>
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<span style="font-family: "arial" , "helvetica" , sans-serif; font-size: large;">The
appellate court reasons that while Kenneth did not own the property individually
at the time of the transfer, his signature on the 2009 Trust was sufficient to
convey title from the 1985 Trust to the 2009 Trust because the 1985 Trust was a
revocable inter vivos trust, he owned the property as sole trustee of the 1985
Trust, and he had the power to transfer real property owned by the 1985 Trust. </span><br />
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<span style="background-color: white; color: #222222; font-family: arial, helvetica, sans-serif; font-size: large;">This case is interesting because the law has been moving towards confirming property listed on a Schedule A as trust property ever since the famous Heggstad case. It has now become settled that if title to a piece of real property was in the name of a person, a Schedule A to a trust or a general assignment to the trust was sufficient to transfer title to the trust, even if the person never got around to actually executing a deed. This is because the Trust, Schedule A, and/or general assignment is evidence of the intent of the person. This was not always the case, for years the Courts simply held: no actual transfer = no transfer. Heggstad was a watershed ruling because many people intend to have all of their property in their revocable trust but can either forget to transfer the property or forget to transfer it after a refinancing. </span><br />
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<span style="background-color: white; color: #222222; font-family: arial, helvetica, sans-serif; font-size: large;">Worthington moves the law moves a bit farther towards effectuating the intent of a person, rather than following the technical rules of how the property is held. </span><br />
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<span style="background-color: white; color: #222222; font-family: arial, helvetica, sans-serif; font-size: large;">Of course, the delay involved in probate litigation is the same as ever. This decision, issued over three and
one-half years after Kenneth passed away, also shows us how long these type of matters can
take to resolve. </span><br />
<span style="background-color: white; color: #222222; font-family: arial, helvetica, sans-serif; font-size: large;"><br /></span>
<span style="background-color: white; color: #222222; font-family: arial, helvetica, sans-serif; font-size: large;">Finally, remember to follow up on trust recording and use professionals so nothing falls through the cracks. Our office records the deeds so these type of oversights do not happen. A simple failure to record can have a significant impact on an estate. </span></div>
<span style="font-size: large;"><span style="background-color: white; color: #222222; font-family: "arial" , sans-serif;"><br /></span>
<span style="background-color: white; color: #222222; font-family: "arial" , sans-serif;">Posted by Henry ("Hank") Moravec III</span></span><br />
<span style="background-color: white; color: #222222; font-family: "arial" , sans-serif; font-size: large;">Email: <a href="mailto:hm@moravecslaw.com">hm@moravecslaw.com</a></span><br />
<span style="background-color: white; color: #222222; font-family: "arial" , sans-serif; font-size: large;">Office: 626-793-3210</span><br />
<span style="background-color: white; color: #222222; font-family: "arial" , sans-serif; font-size: large;"><a href="http://www.moravecslaw.com/" target="_blank">Moravec Varga & Mooney </a></span>Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-49658068980052780802016-04-21T09:14:00.000-07:002016-04-21T09:14:09.327-07:00Technology and Online Tools Can Help Executors of Estates While Executor Works With Probate Attorney<span style="font-size: large;">Technology is making it easier to save and share information and the probate and estate administration world is no different. Clients can use Excel spreadsheets, Dropbox and other file sharing tools with us and beneficiaries.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">The New York Times recently had an article "<a href="http://nyti.ms/1GIQCX5" target="_blank">Online Tools Can Ease the Burden of Being an Executor of an Estate</a>" and it recommended an interesting online database tool called <a href="https://www.estateexec.com/" target="_blank">EstateExec</a> that has gotten good reviews. It is an interactive tool that allows an executor to list and track financial assets, personal property, debts and then share it online with a lawyer or other beneficiaries and family members. It also has timelines and checklists (so court hearings for approval can be entered) which provides a transparency to the process which helps others understand why it can take months in the probate court system.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">While this does not eliminate the need for a probate attorney in an estate with assets, the will is complex or where there is a likelihood of litigation, it has good checklists and is a useful tracking device. It can also be helpful for very small estates that do not need probate court. </span><br />
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<span style="font-size: large;">Part of our practice is focused on using technology where possible to make it easier for our clients. Older clients are not as technology based but things are changing and we can take advantage of all the tools available to us to make probate administration easier and faster. </span><br />
<span style="font-size: large;"><br />Posted by Henry (Hank) Moravec III</span><br />
<span style="font-size: large;">Office</span><span style="font-size: large;">: 626-793-3210</span><br />
<span style="font-size: large;">Email</span><span style="font-size: large;">: <a href="mailto:hm@moravecslaw.com">hm@moravecslaw.com</a></span><br />
<br />Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-24861838242181727502016-04-20T06:43:00.000-07:002016-04-20T06:47:15.401-07:00Foreign Property Considerations In Estate Planning and Probate<div class="separator" style="clear: both; text-align: center;">
<a href="https://2.bp.blogspot.com/-8qYTMOM1Gc4/VxeF2lQPnhI/AAAAAAAAAkA/IwtxoysF6PYsunh1jUCS4aJWT8wZrrXCwCLcB/s1600/foreign%2Bproperty.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://2.bp.blogspot.com/-8qYTMOM1Gc4/VxeF2lQPnhI/AAAAAAAAAkA/IwtxoysF6PYsunh1jUCS4aJWT8wZrrXCwCLcB/s1600/foreign%2Bproperty.jpg" /></a></div>
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<span style="font-family: "arial" , "sans-serif"; font-size: 12.0pt;">In our
practice, we have a significant number of clients who own real property or have bank
account in a foreign country whether China, Mexico, England, Costa Rica, England, Canada or France or other countries. Our
clients are becoming more global and mobile, especially when buying properties
abroad for retirement, vacation or for their families.<o:p></o:p></span></div>
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<span style="font-family: "arial" , "sans-serif"; font-size: 12.0pt;">One
issue that arises with foreign property is the risk of double taxation. It is
possible that when foreign property is transferred, U.S. estate tax will apply,
but so will the tax of the foreign country. When a citizen of the United States
dies and owns property in a foreign country, the property in the foreign
country will be subject to U.S. estate tax if the estate is subject to taxation
at all. There are treaties with certain countries which prevent the double
taxation and give credit.<o:p></o:p></span></div>
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<span style="font-family: "arial" , "sans-serif"; font-size: 12.0pt;">Another
issue that comes up is multiple wills in different jurisdictions. Somestimes one last will and
testament may ultimately revoke another. When ttwo wills are
needed, it is important that attorneys from each country work and coordinate the estate planing and wills.</span></div>
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<span style="font-family: "arial" , "sans-serif"; font-size: 12.0pt;">If there is no will or trust, in
civil law countries, such as France, the property vests in the decedent’s heirs
immediately upon the death of the decedent. This is unlike the United States
and other common law countries, where there generally must be a personal
representative or executor to transfer title or, at a minimum, some sort of
court recognition of the death and transfer of property. </span></div>
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<span style="font-family: "arial" , "sans-serif"; font-size: 12.0pt;">For example, if a
client owning property in France desired that property vest in a long time companion and there was no will or trust, the property would immediately vest as set forth under French succession laws. On the other hand, if the client wanted the property to vest in their heirs, then drafting a will in France to deal with
the French property would be not be needed. </span></div>
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<span style="font-family: "arial" , "sans-serif"; font-size: 12.0pt;">We work with attorneys in other countries while advi</span><span style="font-family: "arial" , sans-serif; font-size: 12pt;">sing clients with foreign property during the estate planning or probate phase. It is always
best to address these issues during estate planning rather than going through
the difficult and expensive process of dealing with them after death through
the probate process. </span><span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 115%;">As we live in a more global society and smaller world, these issues are
becoming more common. Don't forget to prepare for all your estate planning and probate issues, particularly when foreign real
property is involved. </span></div>
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<span style="font-family: "arial" , sans-serif;"><span style="line-height: 18.4px;">Posted by Henry (Hank) Moravec III</span></span><br />
<span style="font-family: "arial" , sans-serif;"><span style="line-height: 18.4px;">Email: <a href="mailto:hm@moravecslaw.com">hm@moravecslaw.com</a></span></span><br />
<span style="font-family: arial, sans-serif;"><span style="line-height: 18.4px;">Office: 626-793-3210</span></span><br />
<span style="font-family: arial, sans-serif;"><span style="line-height: 18.4px;"><br /></span></span>
<span style="font-family: "arial" , sans-serif;"><span style="line-height: 18.4px;"><br /></span></span>Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-60032874110564039632016-04-17T10:08:00.000-07:002016-04-17T10:32:56.068-07:00Who Gets Grandma's Antique China? Do Not Forget the Minor Details and Sentimental Items in Estate Planning.<div class="separator" style="clear: both; text-align: center;">
<a href="https://1.bp.blogspot.com/-NON85WMndOQ/VxPCGVUNLnI/AAAAAAAAAjo/Bj_e8Dy-QgUU2HlH4gRgirPA3j854K9hgCLcB/s1600/china.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="188" src="https://1.bp.blogspot.com/-NON85WMndOQ/VxPCGVUNLnI/AAAAAAAAAjo/Bj_e8Dy-QgUU2HlH4gRgirPA3j854K9hgCLcB/s320/china.jpg" width="320" /></a></div>
<span style="font-family: Arial, Helvetica, sans-serif; font-size: large;">We have had two cases in the last couple of years where one of the attorneys from our office had to spend days sitting with the disputing relatives in estate cases while they took turns going through personal property and effects of their relative. </span><br />
<span style="font-family: Arial, Helvetica, sans-serif; font-size: large;"><span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">Not only was this emotional for the parties but costly from a legal fee standpoint. The parties required it since without cousel present, it could not be accomplished for a variety of reasons.</span></span><br />
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<span style="font-family: "georgia" , "times new roman" , serif;">A recent New York Times article by finance writer Paul Sullivan, <i><a href="http://nyti.ms/265qO3T" target="_blank">When Dividing Assets the Little Things Matter</a></i> (4/15/16) gives all of us a reminder and good ideas on how to not overlook the personal items that may not have as much monetary value as cash, real estate, securities but have sentimental value as well as some monetary value. </span></span><br />
<span style="font-family: Arial, Helvetica, sans-serif; font-size: large;"><span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">When relatives go in and take personal property without agreement between the parties this can be a huge source of future conflict. </span><span style="font-family: "georgia" , "times new roman" , serif;">Photographs are often important, for example, but with scanning companies this can be taken care of as long as one relative has not taken the albums and refused to cooperate.</span><span style="font-family: "georgia" , "times new roman" , serif;"> </span></span><br />
<span style="font-family: Arial, Helvetica, sans-serif; font-size: large;"><span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">This is something that one can do themselves by making lists, taking photographs or videos, etc. We find, however, that for our senior clients it is often overwhelming for them to do. We can send a paralegal or attorney to your home to assist the process which is then covered by the attorney-client privilege and is part of the estate planning process. This can even be done when parents or grandparents decide to downsize and move to avoid family disputes. </span></span><br />
<span style="font-family: Arial, Helvetica, sans-serif; font-size: large;"><span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">For the do-it-yourselfers, there is a company <a href="https://www.fairsplit.com/" target="_blank">FairSplit</a> that has an interesting concept of having licensed insurance adjusters come to your home and take photographs and videos of all items and list them with price based on square footage. This company also has a less expensive online option where you do the listing yourself. </span></span><br />
<span style="font-family: Arial, Helvetica, sans-serif; font-size: large;"><span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">As attorneys we can incorporate this and monitor it so the parties keep track and it is used for the final reports. With technology, there are a lot of tools that can make this entire process easier and less expensive. Lesson is though not to forget the small details and personal mementos, and get help to get it done. Advance planning and hiring someone is far less expensive than legal fees later and less painful than fractured families later. </span></span><br />
<span style="font-family: Arial, Helvetica, sans-serif; font-size: large;"><span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
<span style="font-family: "georgia" , "times new roman" , serif;">Posted by Henry (Hank) Moravec</span></span><br />
<span style="font-family: "georgia" , "times new roman" , serif;"><br /></span>
Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-12361207169912408402016-04-16T11:46:00.002-07:002016-04-28T07:59:30.348-07:00Frequently Asked Questions About Probate Mediation. How to Use Mediation as a Important Tool in Probate Cases. <div class="separator" style="clear: both; text-align: center;">
<a href="https://2.bp.blogspot.com/-Ku2zWilZF94/VxKCWtovi8I/AAAAAAAAAis/TE3-MVagvSIzzJhMAkbGF9ICoFHq3b1kACLcB/s1600/mediation1.5970754_std.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="133" src="https://2.bp.blogspot.com/-Ku2zWilZF94/VxKCWtovi8I/AAAAAAAAAis/TE3-MVagvSIzzJhMAkbGF9ICoFHq3b1kACLcB/s320/mediation1.5970754_std.jpg" width="320" /></a></div>
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<span style="font-family: "helvetica" , sans-serif; font-size: 12pt;">Many clients understand
the concept of going to court or "suing" someone, and that a lawsuit can
result in a trial before a judge or jury. However, not as many know that
(i) in <a href="http://moravecslaw.com/probate.html" target="_blank">probate courts</a>, which hear all estate and trust disputes, there is <u>no</u>
jury, and (ii) there is a strong preference among the probate court judges that
the parties attempt to mediate a matter before a trial will be scheduled. </span></div>
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<span style="font-family: "helvetica" , sans-serif; font-size: 12pt;">What is mediation? Well, in a non-legal sense any negotiation between two people can be
called a mediation. But in the context of a formal court proceeding
mediation has a specific meaning, which is a commitment by the opposing sides
to schedule a day (or series of days) to meet with a mediator and try to resolve
the case in</span><span style="font-family: "arial" , sans-serif; font-size: 16px;"> a confidential, non-binding process</span><span style="font-family: "helvetica" , sans-serif; font-size: 12pt;">.</span></div>
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<span style="font-family: "arial" , sans-serif; font-size: 16px;">Mediation is a flexible and less formal process that may reduce the time, legal fees and costs often associated with preparing for and going through a formal trial. In our practice, we work on making our clients' position as strong as possible before the mediation process so that there is more leverage during negotiations. </span></div>
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<span style="font-family: "arial" , sans-serif; font-size: 16px;">A trained mediator (often a retired probate judge or experienced probate attorney) acts as a neutral person who facilitates communication and assists parties in reaching a mutually acceptable resolution of all or part of their dispute. The mediator is <u>not</u> the decision-maker and does not resolve the dispute -- the parties do with the mediator's assistance. A written settlement agreement is drafted and signed at the end of the day so there is an enforceable agreement.</span></div>
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<span style="font-family: "arial" , sans-serif; font-size: 16px;">A mediator is often able to more fully explore the parties' underlying interests, needs and priorities. It is often conducted like shuttle diplomacy and the parties can tell the mediator "confidential' information not to be shared with the other side. </span><span style="font-family: "arial" , sans-serif; font-size: 16px;">M</span><span style="font-family: "arial" , sans-serif; font-size: 16px;">ediation may be particularly effective when family members have a dispute or when emotions are getting in the way of resolution. </span></div>
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<span style="font-family: "arial" , sans-serif; font-size: 16px;">The attorneys participating are also key to the process. For example, I am also a tax attorney and many probates have tax issues in the background. There can be income tax, step up (or down) in income tax basis or estate tax issues. Sometimes with structuring on the tax side during mediations, taxes can be reduced and used to bridge any settlement gap. The certainty on the tax side can be an important benefit. Creative problem solving by the attorneys is key. Most of the time it is the well-prepared, knowledgeable, strategic and credible attorney who helps the mediator settle the case. </span></div>
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<a name='more'></a><b><span style="font-family: "helvetica" , sans-serif; font-size: 12pt;">Types of Mediation: Court or Private.</span></b><span style="font-family: "helvetica" , sans-serif; font-size: 12pt;"> The Los Angeles County superior
court has a free, court sponsored half day mediation program which parties to a
case can use. </span><span style="font-family: "helvetica" , sans-serif; font-size: 16px;">The free program is staffed by experienced volunteer attorneys seeking mediation business where they donate four hours which often is not enough time to settle a complex case.</span><span style="font-family: "helvetica" , sans-serif; font-size: 16px;"> For complex or significant value cases, we prefer to select a private mediator that both sides agree upon. </span><span style="font-family: "helvetica" , sans-serif; font-size: 12pt;">Often, the mediators at the private companies are retired probate judges which given them credibility to the parties. </span><br />
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<span style="font-family: "helvetica" , sans-serif; font-size: 12pt;">For example, we resolved a dispute over
the validity of a Trust amendment in one full day of mediation. The
parties were approximately a million dollars apart at the beginning of the day
but came to an agreement in the end and it saved our client significant legal fees and gave them certainty in the result. </span></div>
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<span style="font-family: "helvetica" , sans-serif; font-size: 12pt;">As for the private mediators, they are
expensive, typically around $4,000 to $5,000 for a full day. However,
considering the amount of legal fees which could be spent if a case drags on for months,
payment of several thousand dollars to bring the case to resolution is
often viewed as well worth the cost.</span></div>
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<b><span style="font-family: "helvetica" , sans-serif; font-size: 12pt;">Mediation Procedure. </span></b><span style="font-family: "helvetica" , sans-serif; font-size: 12pt;">Clients are often surprised to learn (usually
pleasantly surprised) that when they attend a mediation they do not actually
spend much time with the opposing party or their attorneys. Instead, the
parties are in separate conference rooms, and the mediator goes between the
rooms, discussing the case and proposing solutions. This is where the
skill of the mediator, and the experience the mediator has with the type of
case being mediated comes into play. The success of a mediation does, of
course, depend on the willingness of both sides to compromise, but if both
sides are willing to compromise and be creative then the burden shifts to the mediator to
find a solution agreeable to both sides.<o:p></o:p></span></div>
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<span style="font-family: "helvetica" , sans-serif; font-size: 12pt;">This can be difficult. The reason for the frequent use of retired judges is that judges are used to
telling parties, basically, that their case is not quite as good as they think
it is. Also, the mediator has the job of not only evaluating the case,
but getting to know the parties and figuring out what each party can offer the
other that would really settle the matter. In a case where the only issue
is money, the mediator will go back and forth throughout the day, seeking to
narrow the gap and explain to each side why settling the case could be in their
interest.<o:p></o:p></span></div>
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<span style="font-family: "helvetica" , sans-serif; font-size: 12pt;">For example, at the
start of the day one party may feel they are owed $100,000, and the other side
believes they are only owed $10,000. The person who wants the
$100,000 probably sees that as maximum value, and the person who wants to pay $10,000
sees that figure as minimum value. Over the course of the day, the
parties will make offers. Perhaps the "$100,000 party" will
offer $87,000. Then, perhaps the person who only wanted to pay $10,000
will be convinced to offer at least $40,000. At this point, the $90,000
gap has been narrowed to $47,000. <o:p></o:p></span></div>
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<span style="font-family: "helvetica" , sans-serif; font-size: 12pt;">The mediator will go
back and forth, discussing and arguing points, and try to narrow the gap
further. You might meet with the mediator for a half hour from 10:00
to 10:30 in the morning, and then not see the mediator again until he or
she comes back after meeting with the other side for an hour. Successful
mediations share one characteristic: at some point during the day the gap
between the parties gets narrow enough that it is clear that a settlement will
save money as compared to continuing the case, and once that point is reached
both sides will be incentivized to see if they can find an acceptable number.
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<span style="font-family: "helvetica" , sans-serif; font-size: 12pt; line-height: 115%;">Mediations do fail,
however, because settlement is not like a judgment of the court, it is
voluntary. It is frustrating to spend a whole day and quite a bit of
money and not achieve a settlement, but sometimes parties who attempt a
mediation in, say, April, can return in August and come to an agreement.
At a minimum, the parties each learn what a neutral, experienced third
party thinks of their case, and that alone has value. The parties can also then proceed to trial knowing that they have given it their best effort.</span><br />
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<span style="font-family: "arial" , sans-serif; font-size: 16px;">Other advantages is that the settlement agreement will generally be confidential and not public and it </span><span style="font-family: "helvetica" , sans-serif; font-size: 12pt;">is also faster. It can take at least a year to get to trial and a court date will not be set until mediation has been attempted. </span></div>
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<span style="font-family: "helvetica" , sans-serif; font-size: 12pt;"><b>Mediation Is Not A Sign of Weakness</b> </span></div>
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<span style="font-family: "arial" , sans-serif; font-size: 16px;">While we prepare for trial, in essence, we are also preparing for mediation. It is never done out of weakness but as part of an assessment of a case and recognizing the costs of litigation. Settlement only occurs when it is in our client's best interest and the client is fully informed. We draft confidential mediation briefs for the mediator that sets forth the advantages we have in the case so the mediator can use it when needed. </span></div>
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<span style="font-family: "arial" , sans-serif; font-size: 16px;">We also see attorneys not experienced in probate putting on a "show" and grandstanding for their clients or antagonizing the other side. There is a way to be fight aggressively for your client that does not destroy the possibility of resolving the matter in his or her best interest. We also see clients afraid that entering mediation or engaging in settlement negotiations will be seen as a sign of weakness. It is not. </span></div>
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<span style="font-family: "arial" , sans-serif; font-size: 16px;">The reality is that over 90 percent of probate cases settle before trial. To avoid that realistic fact does not benefit anyone in the long run. Mediation is a useful tool in the probate litigation toolbox and it can be a win for the client in getting them a certain and predictable result while keeping legal fees and costs down and structuring taxes and other financial matters. Needless to say, mediation and settlement can also save significant time and emotional energy. </span></div>
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<span style="font-family: "arial" , sans-serif; font-size: 16px;">We will work on settlement negotiations with the other side as early as feasible.Often, it takes some time whether due to grief or hard feelings between the parties to be able to enter into settlement negotiations. How many times have I heard that a client would rather pay my legal fees than to pay the other side any money? We work with clients to help them preserve their assets and make good business and family decisions even though as probate trial lawyers, we make more money taking cases to trial. </span></div>
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<span style="font-family: "arial" , sans-serif; font-size: 16px;">It is always rewarding to get the telephone call a week or month later thanking me for helping my client get the best possible result and settle a matter even when it was not an easy decision. One thing that makes the process easier is when the client knows that the attorneys are prepared and willing to go to trial if necessary. Do not fear mediation. The attorneys who can resolve complex cases for clients find it a very rewarding part of their practice. </span></div>
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<span style="font-family: "arial" , sans-serif; font-size: 16px;">Posted by <a href="http://moravecslaw.com/About.html" target="_blank">Henry (Hank) Moravec, Jr.</a></span></div>
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<span style="font-family: "arial" , sans-serif;">Email: <a href="mailto:hm@moravecslaw.com">hm@moravecslaw.com</a></span><br />
<span style="font-family: "arial" , sans-serif;">Office: 626-793-3210</span></div>
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<br />Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-7247744891277204012015-10-12T12:03:00.000-07:002016-04-20T06:45:00.122-07:00The Complexities of Assisted Suicide<span style="font-family: Times, Times New Roman, serif; font-size: large;">The California Senate recently approved a bill which would, if approved by the Assembly and Governor, make it legal for a physician to participate in the end of their patients life.</span><br />
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><span style="font-size: large;"><br /></span>
<span style="font-size: large;">If you read the actual text of the Bill, its quite a list of requirements which the treating physician must meet. Regardless of where you come out on this issue, it is an example of how a decision can have multiple levels of legal ramifications.</span></span><br />
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><span style="font-size: large;"><br /></span>
<span style="font-size: large;">We will see if this goes any further.</span></span><br />
<span style="font-family: Times, Times New Roman, serif; font-size: large;"><span style="font-size: large;"><br /></span>
<span style="font-size: large;">The L.A. Times weighs in:</span></span><br />
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<a href="http://www.latimes.com/local/political/la-me-pc-assisteddeath-bill-approved-by-california-senate-20150603-story.html" target="_blank"><span style="font-size: large;">http://www.latimes.com/local/political/la-me-pc-assisteddeath-bill-approved-by-california-senate-20150603-story.html</span></a></span>Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-81809255585990508142015-10-04T10:18:00.000-07:002016-04-20T06:44:28.553-07:00What Happens When There is an Argument About Your Will?<span style="font-family: inherit; font-size: large;">Or, for that matter, about your Trust? Well, the answer is that depending upon the issue, possible beneficiaries will make any argument they can think of, even that they need to be paid $7,500 per month to take care of your dog. Check out <a href="http://www.hollywoodreporter.com/features/battle-simpons-creator-sam-simons-828095" target="_blank">The Hollywood Reporter on the late Sam Simon's Will</a></span><br />
<span style="font-family: inherit; font-size: large;"><br /></span>
<span style="font-family: inherit; font-size: large;">The article is not only interesting in a "lifestyles of the rich and famous" sense, but more detailed than many articles about disputes in estates, most of which skim the surface.</span><br />
<span style="font-family: inherit; font-size: large;"><br /></span>
<span style="font-family: inherit; font-size: large;">In this case, the late Sam Simon, a producer of the Simpsons TV show, was also a committed animal rights activist. He supported many charities before his untimely death from colon cancer, and was unmarried without children when he passed away.</span><br />
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<span style="font-family: inherit; font-size: large;">While the "how much can you spend on your dog?" angle is the entertainment hook, it is a perfect illustration of how even those who seek counsel and draft proper documents cannot guarantee that arguments won't come up later. </span><br />
<span style="font-family: inherit; font-size: large;"><br /></span>
<span style="font-family: inherit; font-size: large;">Here, its about alleged oral promises. Should an oral promise be enforceable? Generally the legal answer is "no" - but everything depends on the documents. </span><br />
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<span style="font-family: inherit; font-size: large;">At Moravec, Varga & Mooney we help clients deal with these post-death arguments on a regular basis. If you are a beneficiary or an Executor of an Estate or Trust, we can tell you all about your rights and duties. </span>Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-19255789975244946722014-05-08T08:50:00.004-07:002016-04-20T06:45:40.181-07:00Four Estate Planning Documents Everyone Should Have<div class="separator" style="clear: both; text-align: center;">
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Is "estate planning" only for the wealthy or for those who are leaving large inheritances or have tax shelters? No. the Wall Street Journal recently had an article on this very topic. The WSJ article emphasized, as we estate and probate lawyers know, that this is not just about planning to avoid taxes, but is about what happens if you pass away or if you get very sick and live. <span style="line-height: 1.4em;">Here's are the four estate-planning documents everyone needs regardless of your wealth. Planning also helps prevent litigation and saves what money there is in the estate and helps preseve family relationships.</span></div>
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<strong style="border: 0px; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">1. Will.</strong></div>
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Many people think they don't need a will. But sitting down with a lawyer and completing a will is the best way to ensure your wishes will be fulfilled—and to avoid leaving anything up to the courts. This is important if there are minor children who need guardians or multiple adult children who are heirs. </div>
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<span style="line-height: 1.4em;">An important part of the will is naming the executor who is in charge of managing an estate, including paying bills. While you don't need to tell anyone what is in your will, it's important to let your designated executor know he or she has been chosen to do that job, and it might be a good idea to inform other family members, too. You should also have </span><span style="line-height: 1.4em;">have discussions with family members about how personal effects or family heirlooms are handled.</span></div>
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<span style="line-height: 1.4em;">There may be a temptation to do a will on the cheap, using online resources. As the WSJ advised, "Tread warily." "Small details can end up invalidating wills or leaving your wishes unfulfilled."</span></div>
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<strong style="border: 0px; line-height: 1.4em; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">2. Durable power of attorney.</strong></div>
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A power of attorney can give someone else the authority to act as your "agent" and make legal and financial decisions should you become incapacitated.</div>
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Don't take this decision lightly. Unlike an executor, this could be a continuing role. Give a serious thought about to whom you are giving power of attorney. It's <span style="line-height: 1.4em;">important to consider that this person will be managing your finances. Does this person have the skill sets for managing money?</span></div>
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<span style="line-height: 1.4em;">In addition, </span><span style="line-height: 1.4em;">always name a backup. Many people will name their spouse, but what happens if both are injured in a car wreck or both develop signs of dementia?</span></div>
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<strong style="border: 0px; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">3. Medical power of attorney.</strong></div>
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This document—also known as a health-care proxy—enables any adult you designate to make medical decisions on your behalf should you be unable to make them yourself. One idea is to p<span style="line-height: 1.4em;">ick the person who you think is going to stay calm in a crisis. Who can handle making medical decisions in a difficult situation without being overcome by emotion or grief? </span></div>
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<strong style="border: 0px; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">4. A living will.</strong></div>
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A living will—sometimes known as an advanced health-care directive—specifies in writing your wishes for end-of-life care. That includes such things as whether you want to be resuscitated if your breathing or heartbeat stops, or whether you want to be kept alive through artificial respiration or feeding.</div>
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When it comes both to the medical power of attorney and living will, sit down and have a conversation with loved ones about your wishes. It may not be easy, but will help later in what will be a difficult time for your family.</div>
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<strong style="border: 0px; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">5. Be organized. </strong><span style="border: 0px; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">M</span><span style="line-height: 1.4em;">ake things easier for everyone by keeping your important documents, financial records and even information about doctors and medication updated and in one place. (Just not in a safe-deposit box, which will require a power of attorney to access.)</span></div>
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Once a year, provide your estate and probate attorney with an updated list of your bank and investment accounts, and any other important information, which they can hold in your file. </div>
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Posted by Henry J. Moravec, III You can reach him at hm@moravecslaw.com or 626-793-3210.</div>
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Moravec, Varga and Mooney website: <span style="line-height: 1.4em;"><a href="http://www.moravecslaw.com/">www.moravecslaw.com</a></span></div>
Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-60061526845403167782013-09-11T10:19:00.002-07:002013-09-12T08:02:38.312-07:00Gifts To Caregiver - Special Protocols Are Required. Sample Case Where Court of Appeals Ruled Step-Daughter Was An "Heir" For Purposes of "Blood or Marriage" Exception<div>
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<span style="font-family: Trebuchet MS, sans-serif;"><span class="Apple-style-span" style="line-height: 18px;">When a client (especially an elderly one) wants to make a bequest to a caregiver in estate planning documents (a trust or will), the law requires a special protocol. Similarly, when we are hired as an administrator or to represent beneficiaries, gifts to caregivers are subject to great scrutiny. Why? Gifts to caregivers are generally prohibited by law under California Probate Code section 21350 with some exceptions. </span></span></div>
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<span style="font-family: Trebuchet MS, sans-serif;"><span class="Apple-style-span" style="line-height: 18px;">Probate Code Section 21351, enumerates several exceptions to this general rule. One of the exceptions—found in Section 21351(a)—provides that section 21350 does <u>not</u> apply IF the transferor is related by blood or marriage to, is a cohabitant with, or is registered as a domestic partner of the transferee. Cal. Prob. Code § 21351(a). </span></span></div>
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<span style="font-family: Trebuchet MS, sans-serif;"><span class="Apple-style-span" style="line-height: 18px;">One California published decision addressed whether this provision applied to a stepdaughter by marriage and highlights the issues that arise when a caregiver is a beneficiary under a trust or will. This </span></span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif; line-height: 18px; text-align: -webkit-auto;">California Court of Appeal case is </span><span class="Apple-style-span" style="font-family: 'Trebuchet MS', sans-serif; line-height: 18px; text-align: -webkit-auto;"><a href="http://scholar.google.com/scholar_case?case=9603055952885276532&hl=en&as_sdt=2&as_vis=1&oi=scholarr" target="_blank">Hernandez v. Kieferle (2nd Circuit, 2011</a>). </span></div>
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<span class="Apple-style-span" style="font-family: Trebuchet MS, sans-serif; line-height: 18px;">In Hernandez v. Kieferle, the Second Appellate District of California reviewed a probate court decision which invalidated an amendment to a trust designating stepdaughter Claudine Kieferle as the trustee and sole beneficiary of her stepmother Gertrude’s estate.</span></div>
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<span style="font-family: 'Trebuchet MS', sans-serif; line-height: 18px; text-align: -webkit-auto;">In plain language, here is what happened. At one point, neighbor Florentina Hernandez was the trustee and principal beneficiary of Gertrude Kieferle's estate. The stepdaughter Claudine moved in with Gertrude and took care of her. Stepmother Gertrude amended her trust to make stepdaughter and caretaker Claudine the trustee and <u>sole</u> beneficiary. Now neighbor Florentina was not going to receive anything with the new amendment. </span></div>
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<span style="font-family: 'Trebuchet MS', sans-serif; line-height: 18px; text-align: -webkit-auto;">After Gertrude passed away, Florentina challenged the validity of the second trust amendment under Probate Code Section 21351(a) mentioned above. The probate court ruled in neighbor Florentina's favor and invalidated that amendment. </span><span style="font-family: 'Trebuchet MS', sans-serif; line-height: 18px;">At the probate court level, the court ruled in favor of Florentina noting that section 21350 established a presumption that transfers to care custodians are the product of fraud, duress, menace, or undue influence and, since Claudine lived with Gertrude and cared for her in the evenings, Claudine was disqualified from taking under the trust.</span></div>
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<span style="font-family: 'Trebuchet MS', sans-serif; line-height: 18px; text-align: -webkit-auto;">Stepdaughter Claudine appealed the ruling and won on appeal. </span><span style="font-family: 'Trebuchet MS', sans-serif; line-height: 18px; text-align: -webkit-auto;">In reviewing the lower court ruling, the Appellate Court reversed this decision and concluded that it was an error not to apply the exception found in section 21351(a). The Court rejected the argument that the exception did not apply to Claudine because she was not an “heir”—where her stepmother’s estate did not actually contain property attributable to her father (who passed away eleven years prior)—and found that a person is the transferor’s heir if some intestate rule identifies the person as the transferor’s successor, regardless of whether the transferor’s estate includes the type of property distributed under the rule. Therefore, the section 21351 exception applied and the second amendment was deemed valid allowing Claudine to remain as the trustee and sole beneficiary of Gertrude’s estate.</span></div>
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<span style="font-family: 'Trebuchet MS', sans-serif; line-height: 18px; text-align: -webkit-auto;">Posted by Henry Moravec, III, Attorney at <a href="http://www.moravecslaw.com/" target="_blank">Moravec, Varga and Mooney</a>. </span><br />
<span style="font-family: 'Trebuchet MS', sans-serif; line-height: 18px; text-align: -webkit-auto;">Contact at <a href="mailto:hm@moravecslaw.com">hm@moravecslaw.com</a> or 626-793-3210</span><br />
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Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-4142567505573968032013-06-06T17:30:00.000-07:002013-09-20T07:15:23.114-07:00Do I Need to Hire a Lawyer in Probate Court?<a href="http://3.bp.blogspot.com/-2T4o1C0708o/SnhFBU8dr_I/AAAAAAAAAFs/PCbi9lCFgL4/s1600/3500541225_c69a34daba_m.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://3.bp.blogspot.com/-2T4o1C0708o/SnhFBU8dr_I/AAAAAAAAAFs/PCbi9lCFgL4/s1600/3500541225_c69a34daba_m.jpg" height="240" width="320" /></a>One common question that we often hear is the following:<br />
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"Do I have to hire a lawyer in Probate Court?"<br />
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or its close relative:<br />
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"Can I represent myself in Probate Court?" <br />
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I would note that this question also comes up during Probate Court hearings on a regular basis, because on a typical day, out of about 50 or so matters on the calendar there are bound to be 2 or 3 people representing themselves without lawyers. Invariably, of the two or three, one or two of them is told by the judge to "seek legal advice."<br />
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You would expect a lawyer to say "of course you need to hire a lawyer" but the most accurate answer is that the need depends upon the facts:<br />
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1.<b> If you have plenty of time on your hands, and no time pressure with respect to the estate, and no pressure from creditors or heirs, you might be able to represent yourself and have no downside</b>. Most people consider "wasting time" a downside, hence the first qualification. A continuance, which is what the Court calls the situation where a matter scheduled for January 31 has to to be rescheduled for March 5 because a document is not properly prepared, causes a delay of the time of the continuance, in this example over 30 days. So, if it does not matter how long it takes to, for example, take title to property, then the client would not be upset with the delay. However, if a creditor or another heir wants things concluded, the delay is problematic.<br />
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2 <b>So, that leads us to the next generalization: if time is in any sense of the essence, only by using an experienced probate lawyer can you be confident to minimize delays</b>. This also applies if the client simply wants to not worry about the matter, because regardless of how long the process takes, the stress factor drops if a lawyer helps with the case.<br />
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3. <b>Then, there are the situations in which you absolutely need a lawyer, and as soon as possible</b>: (a) any time there is a party against you. This is because a mistake you make may result in liability to the other party, be they creditor or heir. (b) Any time there is a potential tax problem of the decedent. (c) any time there is a creditor of the decedent which has a claim which may be disputed.<br />
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4. <b>Finally, if you do not want the burden of responsibility, you should always hire a lawyer</b>. If, for example one sibling is nominated to be the administrator, and part of the job is reporting on the administration to the other siblings, use of an experienced probate lawyer greatly increases the odds that the administration will be stress free, since an expert will be available to answer questions. This factor alone seems like a matter of common sense but is in fact important. Many "probate disputes" start when the administrator is un-represented and an avoidable mistake is made.<br />
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<span style="color: blue;">The Cost May Be Less Than You Think</span><br />
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Probate fees are significantly less than fees charged by realtors to market and sell property. Although there are some discount real estate (market your property yourself) brokerages, in the main no one considers the standard 5% commission on a real estate transaction to be out of line, and as a matter of fact considering the amount of people who voluntarily pay it, it is considered very much "in line." To sell a $1,000,000 house, in a transaction which might take 60 to 90 days, costs $50,000. To probate a $1,000,000 estate, which might take more than a year, and collect various assets and deal with multiple beneficiaries, and protect yourself as a fiduciary from liability costs a $23,000 statutory fee in Probate Court. Although there are sometimes other fees and costs for additional work, at a fundamental level in this area legal representation is less expensive that selling a house.<br />
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So, it turns out that advice is actually simple. Save money if you can, but don't be "penny wise and pound foolish."<br />
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Posted by <a href="http://www.moravecslaw.com/About.html" target="_blank">Henry (Hank) J. Moravec, III</a>, a partner at Moravec, Varga and Mooney, A Partnership.<br />
For
a free 30 minute consultation (telephonic or in person), you can e-mail
Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210. The firm website is <a href="http://www.moravecslaw.com/">www.moravecslaw.com</a><br />
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<br />Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-29368071630205763912013-05-09T18:16:00.003-07:002013-09-11T09:49:00.687-07:00Probate and Trust Administration Top Posts<a href="http://4.bp.blogspot.com/-Ly9vrLmU7nk/SqvCR1ZJwEI/AAAAAAAAAIs/aFHDlG4EVQE/s1600/3115224625_b12a7eb939_m.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://4.bp.blogspot.com/-Ly9vrLmU7nk/SqvCR1ZJwEI/AAAAAAAAAIs/aFHDlG4EVQE/s1600/3115224625_b12a7eb939_m.jpg" /></a> The other day I was looking through all the stats on the blog, to see the most popular posts. In first place is <span style="color: black;"><a href="http://losangelesestateprobatelawyer.blogspot.com/2009/08/will-trust-attorney-california-estate.html" target="_blank">What happens when someone dies without a will?</a></span> with 1550 views. If you liked that one, check the 2013 related post: <span style="color: magenta;"><span style="color: red;"><a href="http://losangelesestateprobatelawyer.blogspot.com/2013/04/dies-without-will-estate-administration.html" target="_blank">What happens when someone dies without a will? Does joint tenancy save the day</a></span><span style="color: blue;"><u>?</u> </span></span>The rest of the top five posts of all time on the blog are:<br />
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2. <a href="http://losangelesestateprobatelawyer.blogspot.com/2010/09/los-angeles-probate-lawyer-attorney.html" target="_blank">Recent California Decision On Breach Of Trust & Trustee Fiduciary Duties</a> with 1010 views.<br />
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3. <a href="http://losangelesestateprobatelawyer.blogspot.com/2009/12/trust-beneficiary-attorney-california.html" target="_blank">Recent California Decision Highlights Trustee's Breach Of Duties And Misconduct When Trustee Is Also A Beneficiary</a> <span style="font-weight: normal;">with 961 views</span><br />
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<span style="font-weight: normal;">4. </span><a href="http://losangelesestateprobatelawyer.blogspot.com/2012/01/probate-estate-lawyer-california-what.html" target="_blank">What Is Undue Influence In California Probate Courts?</a><span style="font-weight: normal;"> with 740 views, and </span><br />
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<span style="font-weight: normal;">5. </span><a href="http://losangelesestateprobatelawyer.blogspot.com/2010/02/estate-trust-attorney-glendale.html" target="_blank">Potential Estate Tax Implications Of J.D. Salinger's Death </a><span style="font-weight: normal;"> with 490 views.</span><br />
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<span style="font-weight: normal;">We feel that there is an overall theme developing here, since the most viewed posts are probably connected with what people are searching for on the Internet and what brings them to the blog. </span><br />
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<span style="font-weight: normal;">As a technical matter, the permanent change to a $5,000,000 exemption per person means that for many people, estate taxes are no longer an issue which would drive estate planning. It is a huge difference to not so long ago when the exemption was only $600,000.</span><br />
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<span style="font-weight: normal;">However, family relationships cannot be legislated, and the conflicts which develop after death are very much unaffected by tax laws. If one child thinks that their sibling unduly influenced Mom, well, that is simply an issue which will always be around.</span><br />
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<span style="font-weight: normal;">We see our practice in disputed matters steadily expanding, so these stats are not surprising to us. </span><br />
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Posted by <a href="http://www.moravecslaw.com/About.html" target="_blank">Henry (Hank) J. Moravec, III</a>, a partner at Moravec, Varga and Mooney, A Partnership.<br />
For
a free 30 minute consultation (telephonic or in person), you can e-mail
Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210. The firm website is <a href="http://www.moravecslaw.com/">www.moravecslaw.com</a><br />
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<span style="font-family: 'Trebuchet MS', sans-serif;">The San Gabriel Valley office is located at </span><a href="http://maps.google.com/maps?hl=en&rlz=1G1GGLQ_ENUS319&=&q=moravecs%20san%20marino&um=1&ie=UTF-8&sa=N&tab=wl" style="font-family: 'Trebuchet MS', sans-serif;">2233 Huntington Drive, Suite 17, San Marino, California 91108</a><span style="font-family: 'Trebuchet MS', sans-serif;">.</span><br />
<br />Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-24077477796161383822013-04-18T19:07:00.001-07:002014-05-13T08:39:26.924-07:00What Happens when a Person Dies with an Ambiguous Will? <a href="http://1.bp.blogspot.com/-lW0rjqW2N5E/SbZRUMSx8zI/AAAAAAAAAAs/kKPGfAjjMNo/s1600/1715714504_62595b6478_m.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://1.bp.blogspot.com/-lW0rjqW2N5E/SbZRUMSx8zI/AAAAAAAAAAs/kKPGfAjjMNo/s1600/1715714504_62595b6478_m.jpg" /></a>I have been posting lately on the various issue and challenges raised by probate and trust litigation. Now, just to be clear, "litigation" means an actual filing in a Court of law. But what of something that rises to the level of a mere "argument" or maybe a level or two above an argument, perhaps where each person feels they need a lawyer to advise them, but does not actually end up in court? In other words, a "dispute?"<br />
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It is probably fair to predict that for every matter which actually results in litigation in the probate courts, there are some multiple of matters over which there is a dispute which, although it may be serious to the parties, does not (fortunately) result in actual litigation. <br />
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A new matter came into the office the other day which reminded me of law school, where the law professors try to fit all of the possible legal issues into one fact pattern. This matter had the following facts:<br />
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1. <b>The decedent elected to have the most "simple" Will he could get</b>. I am not sure where he got it, but it only consisted of a couple of pages. In it, his stepson was given "all the Widgets I own at the time of my death." There was no list of Widgets either in the Will or set forth otherwise.<br />
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2. <b>Of course, the relationship between the stepson and the biological son (who was to get the remainder of the assets) was not good</b>.<br />
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3. <b>Like many people do, the decedent made gifts during his lifetime</b>. One of them was a gift of a relatively valuable Widget #1 to his biological son. This was actually shipped by the decedent to the biological son, but no written notation of the gift was made.<br />
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4. <b>The decedent also, like many people, talked</b>. All kidding aside, he also promised one reasonably valuable Widget #2 to his grandson (the son of the biological son). Although he talked about it with various people, and referred to the Widget as "grandson's Widget" he never actually delivered it to the grandson. After the decedent's death, biological son shipped this Widget to the grandson. Like the Widget in paragraph 3 above, there was no written notation.<br />
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5. <b>The decedent also had charitable intent</b>. Shortly before his death he had his biological son contact a charity which ran a Widget museum. He wanted to donate one valuable and rare Widget #3 to the museum. There was an email exchange on this topic between the museum and the decedent's biological son about three months before the decedent passed away, but no formal contract. After the decedent's death the museum accepted the rare Widget.<br />
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6. <b>Last but not least, the decedent of course had a comprehensive set of Widget making and Widget repairing tools and spare parts. </b>He also was in the process of making a couple of Widgets (which would be #4 and #5 --- of course, the guy was a Widget maker, what would one expect?). After the decedent died, the biological son, not being a Widget maker, asked the museum if they would like this esoteric set of personal property, the museum said yes.<br />
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Now the biological son learns a few things: the step son basically wants to know why he should not get Widgets 1 through 3, and also that the step son thinks that some of the "materials" were close enough to being completed "Widgets" that they should have gone to hims as "Widgets 4 and 5" under the Will.<br />
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What result? Well, at the moment there is no court "litigation" on these claims. Everyone is upset, but how will it work out?<br />
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<b>My predictions, which I will expand upon in upcoming posts, are</b>:<br />
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Widget #1 stays with biological son. Widget #2 might have to be returned, depending upon whether the executor can enforce the "oral" gift under local law. Widget #3 may well come back into the estate, because charities do not like to get a reputation for holding on to property at the expense of heirs. However, Widget #3 also has a written pledge (the email). Widgets #4 and #5 probably stay with charity, as the executor can conclude that they are not completed Widgets.<br />
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This is exactly the sort of disputes which can be avoided if appropriate time is taken in the drafting of estate planning documents in the first place. And this avoidance does depend upon having someone with experience advise you when you draft documents. A good lesson to keep in mind. <br />
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Posted by <a href="http://www.moravecslaw.com/About.html" target="_blank">Henry (Hank) J. Moravec, III</a>, a partner at Moravec, Varga and Mooney, A Partnership.<br />
For
a free 30 minute consultation (telephonic or in person), you can e-mail
Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210. The firm website is <a href="http://www.moravecslaw.com/">www.moravecslaw.com</a><br />
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<span style="font-family: Times, Times New Roman, serif;">The Los Angeles area office is located at <a href="http://maps.google.com/maps?hl=en&rlz=1G1GGLQ_ENUS319&=&q=moravecs%20san%20marino&um=1&ie=UTF-8&sa=N&tab=wl">2233 Huntington Drive, Suite 17, San Marino, California 91108</a>.</span><br />
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Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-53380304395837244412013-04-09T22:37:00.000-07:002014-05-13T08:39:06.177-07:00Litigation in the Probate Courts Part II, How Long Does it Take?<a href="https://lh4.googleusercontent.com/-lRn9yVz8Eb4/SbLcCJSxPaI/AAAAAAAAAAc/SGDBZWnAgGs/h120/2210395169_a517c9fe8e_m.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="320" src="https://lh4.googleusercontent.com/-lRn9yVz8Eb4/SbLcCJSxPaI/AAAAAAAAAAc/SGDBZWnAgGs/h120/2210395169_a517c9fe8e_m.jpg" width="212" /></a>In the first installment of this series of posts, we talked about the general aspects of probate litigation, and what to expect if you find yourself involved in a case. In this post I will talk about how long each phase of a case may take, and what a litigant can expect along the way. Often, the timing of a case is as important as the substance of the claims.<br />
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A case breaks down into the following segments:<br />
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<u><b>A. Pleading, or the making of allegations by one side and the corresponding denial of allegations by the other side.</b></u> Pleading alone can take several months. In a Probate case, it is rare for one party to file any sort of motion, the other party to receive it and object, and for the parties to both agree with the Court to move to the next stage in anything less than about four months, sometimes much longer. The other factor is that in a Probate case there are often more than two sides. Each beneficiary of an estate could have a different view of a matter.<br />
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<u><b>B. Discovery, or additional fact finding.</b></u> Additional fact finding always takes time. For example, let say that the matter at issue is a beneficiary demanding an accounting. Well, the court may say "when can you have that accounting done?" The party may respond "in three months." Then the court orders it filed, and of course the other side gets time to examine it and have specific objections, which might take a couple of more months. So now you could easily have taken a year.<br />
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<u><b>C. Preliminary Orders, which are Orders from the Court to keep the case moving along</b></u>. There may be some preliminary orders along the way, but those could be expensive to get and are always time consuming. To continue with the example above, a typical case may start with a beneficiary accusing the trustee of some act and asking that the trustee be removed. However, if there has not been an accounting filed the court will want to see that first, and that may take a few months.<br />
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<u><b>D. A formal mediation.</b></u> At this point a year or so may have gone by, and the parties are already growing tired. At this point the Court will offer the parties a chance to mediate the matter before a private mediator. Often, this is the point at which the case settles. Mediation can be very helpful, since it is often in mediation that, for the first time, one side hears how the other side's arguments and their arguments are viewed by an unbiased third party.<br />
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<u><b>E. An Evidentiary Hearing</b></u>. Thiis is what most people consider "a trial" to be, or what they think of by "going to court." Not only do the first four steps often take more than a year to complete, it now may take a year to get a hearing date on a matter that will take more than a couple of hours of evidence. Two years with no resolution feels like a long time, and it is.<br />
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<u><b>F. Appeals, if any</b></u>. An actual appeal, with briefing schedule to the appellate court, could be another year. Often, appeals are filed simply to create the possibility of additional settlement discussions.<br />
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As you can see, the rather extreme length of time it can take to obtain a court order is a factor in the dispute, independent of the actual merits of the claim. Time is a factor which simply must be discussed with the client, because not only is "time" an issue, but costs rise along with time. There is no positive way to really spin this, but this is why most cases settle -- it would simply take too long and cost too much to achieve complete victory.<br />
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At Moravec, Varga & Mooney we have extensive experience with disputed matters and the various phases of a case. We have found that it is a great help to a client to give them an honest appraisal of how long a case can actually take. It can be an extremely bad thing if a lawyer is "too optimistic" about how quickly a client can get a case to a judge. If the client does not understand the time and costs involved, the time and cost can simply overwhelm the merits of the case, which can be a disaster if the case is actually a good one.<br />
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Posted by <a href="http://www.moravecslaw.com/About.html" target="_blank">Henry (Hank) J. Moravec, III</a>, a partner at Moravec, Varga and Mooney, A Partnership.<br />
For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210. The firm website is <a href="http://www.moravecslaw.com/">www.moravecslaw.com</a><br />
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<span style="font-family: 'Trebuchet MS', sans-serif;">The Los Angeles area office is located at </span><a href="http://maps.google.com/maps?hl=en&rlz=1G1GGLQ_ENUS319&=&q=moravecs%20san%20marino&um=1&ie=UTF-8&sa=N&tab=wl" style="font-family: 'Trebuchet MS', sans-serif;">2233 Huntington Drive, Suite 17, San Marino, California 91108</a><span style="font-family: 'Trebuchet MS', sans-serif;">.</span><br />
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<br />Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-58987751345451056542013-04-02T11:07:00.000-07:002014-05-13T08:43:26.038-07:00What Happens When Someone Dies Without a Will? Does Joint Tenancy Save the Day?<a href="http://1.bp.blogspot.com/-bhq_qR3zOug/TBOyIBvHS7I/AAAAAAAAAMU/1gcIKvOvWUg/s1600/jp-estate-articleInline.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://1.bp.blogspot.com/-bhq_qR3zOug/TBOyIBvHS7I/AAAAAAAAAMU/1gcIKvOvWUg/s1600/jp-estate-articleInline.jpg" /></a>One of the features of Blogger is that you can see the list of the most popular posts on a blog. Currently our number one post is "<a href="http://www.moravecslaw.com/probate_Litigation.html" target="_blank">What happens when someone dies without a Will</a>?" It is easy to see why this would be a popular search, since it may well be true that a very large number of people die without a Will or a Trust, which is known as dying "intestate" (the technical legal term). <br />
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The chap to the right looks very satisfied with himself. He may have been thinking "I have my property sorted out and I did it all by myself!" However, he may well have simply created a minefield for his heirs.<br />
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Our post from 2009 addressed the basic question of what happens in an intestate <a href="http://www.moravecslaw.com/probate.html" target="_blank">estate administration</a>. That post set forth the basic ways in which property can be transferred when someone dies without a Will or Trust: (I) by small estate declaration, (II) by "contract" or (III) through a probate proceeding.<br />
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In this post I will elaborate a bit on what by "contract" means. We use "contract" to cover a wide range of non-probate transfers. The most common may be the joint tenancy. Joint tenancy means that title to a piece of property, either personal property, such as a bank account, or real property, is in the name of two or more people as joint tenants. The long phrase is "joint tenants with right of survivorship" and what it simply means is that when any joint tenant dies, upon proof of death, the property passes to the other joint tenants.<br />
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Joint tenancy has always had one advantage going for it -- simplicity. It is not a big deal to put a bank account into joint tenancy, you just fill out the appropriate form at the bank. For real property, a deed is required, but these days many people attempt to fill out their own deed and often are successful. When real property is purchased, the escrow company can simply put the title into joint tenancy at the request of the buyer.<br />
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However, joint tenancy has a number of disadvantages, which can run the gamut from annoying to serious:<br />
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1. <b><u>It assumes order of death.</u></b> For estate planning purposes, properly drafted documents take into account variables in who dies first. At best, if a parent puts a child on as a joint tenant and the child dies first, it is a waste of effort. At worst, if the child is put on only one deed with the intent of that particular property going to that child, and ultimately to that child's children or spouse, and the child dies, then the property reverts to the parent, and does not go to the child's heirs.<br />
<br />
2. <b><u>It provides no protection against disability.</u></b> One of the benefits of a revocable trust is that it applies if the settlor (or creator) of the trust becomes disabled. Putting property in joint tenancy does not have any management upside -- both joint tenants must executed any documents of sale or financing. So if a parent puts a property in joint tenancy and becomes incompetent, that parent could not execute any documents with respect to that property, and problems could easily arise.<br />
<br />
3. <u><b>No creditor protection on first death</b></u>. Another issue with a simple joint tenancy between husband and wife is that the change in tax laws has perhaps led some to ignore other, non tax issues. For example, a couple who are in no danger of amassing an estate worth $10 million could have all of their assets in joint tenancy, and thus if one dies all goes to the survivor. However, this does not deal with: creditors of the surviving spouse, everything from potential remarriage to medical bills. With a trust, half of the couple's net worth would have been protected. Plus, upon the death of both parents a probate would be necessary.<br />
<br />
<a href="https://www.blogger.com/blogger.g?blogID=935899885678695097" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"></a>4. <b><u>It is easy to forget.</u></b> A joint tenancy is so simple that its easy for a person to forget they even have set one up. We have had many instances where one of the contingencies discussed in this memo occurs and the client, or the client's children, are surprised to learn of a joint tenancy property or account set up years before.<br />
<br />
5. <u><b>It does not verify actual ownership interest.</b></u> This is a real nuts and bolts problem. For example, take refinancing or sales of property. Once a person is a joint tenant, they have to sign off on all of the documents relating to that property. A second point that comes up is whether, when a couple puts a child on a deed as a joint tenant, if they intended a specific gift. The IRS generally says "no" but the County Assessor, who is looking to re-assess property, may say "yes." In California, the Proposition 13 property taxation system always needs to be considered.<br />
<br />
The other, most common way an interest in property can pass is by "beneficiary designation" which I will cover in another post.<br />
<br />
For now, the main thing to consider is that estate planning is all about "planning" for various contingencies. Many clients are unaware of all the possible contingencies which might affect them. That is where we can help, since we have experience with just those contingencies a client might miss.<br />
<br />
When it comes to sorting out an estate of a person who dies intestate, many of the same contingencies a client should have considered while alive are triggered. This is where our expertise again is of great help to clients, because just as much planning can occur after a person dies as before.<br />
<br />
The majority of the work in our practice, in terms of hours spent, is always on post death administration, be it sorting out an intestate estate or resolving a dispute.<br />
<br />
Posted by <a href="http://www.moravecslaw.com/About.html" target="_blank">Henry (Hank) J. Moravec, III</a>, a partner at Moravec, Varga and
Mooney, A Partnership.<br />
For a complimentary 30 minute consultation (telephonic or
in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call
him at (626) 793-3210. The firm website is <a href="http://www.moravecslaw.com/">www.moravecslaw.com</a><br />
<br />
<br />Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-28351851453778157332013-03-19T13:35:00.001-07:002014-05-15T10:06:58.278-07:00A Candidate for the Longest Estate Administration - over 60 years!<a href="http://1.bp.blogspot.com/-fr6Fi9qWfj8/StKFW_Mvj5I/AAAAAAAAAJ8/XfureEaSntU/s1600/6a00d8341bfae553ef01157159de48970c.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://1.bp.blogspot.com/-fr6Fi9qWfj8/StKFW_Mvj5I/AAAAAAAAAJ8/XfureEaSntU/s1600/6a00d8341bfae553ef01157159de48970c.jpg" height="320" width="298" /></a><span style="color: blue;"><b>An Epic Story of Procrastination? Or an Epic Story of a Distaste for English Weather?</b></span><br />
<br />
The U.K.'s Daily Mail has a story about, a long (very, very long) Probate dispute.<br />
<br />
Incredibly, an English estate with a manor house and (at one time) 3,000 acres of farmland<span style="color: blue;">, and a steady rental income</span> went unclaimed for decades. The case is both interesting in a "Downton Abbey" kid of way, and a procedural way: what is the result if a beneficiary refuses to accept property?<br />
<br />
The estate is known as the Figg-Hoblyn estate, named after the family who first lived there beginning in the 1600s. The saga which recently ended began with the estate plan set up in 1856. As was the custom at the time, the estate was left to the oldest surviving male heir. <span style="color: blue;">For <span style="color: blue;">those interested in what happened a<span style="color: blue;">s a t<span style="color: blue;">echnical matter<span style="color: blue;"> (well, let's not count how many of you <span style="color: blue;">make up that category, shall we?) the <span style="color: blue;">"estate plan" in question was not a <span style="color: blue;">Will or a Trust, <span style="color: blue;">but a de<span style="color: blue;">e<span style="color: blue;">d, which contained trust-like provisions for ownership of the property and its income. </span></span></span></span></span></span></span></span></span></span></span><br />
<br />
Squire William Hoblyn had one son and four daughters. When his son, Ernest, died shortly after William's death, the downside of the "eldest male heir system" was brought into full relief. None of the other Hoblyn daughters had yet married. When one of them finally did marry, she first moved to Canada and then California (as, presumably, she did not have a legal right to the "family" estate).<br />
<br />
Her oldest son, Francis Figg-Hoblyn, visited the estate in 1947 (after presumably becoming aware that he was now the oldest male heir), but was daunted by the amount of work needed to be done, and never took possession. When Francis died in 1965 his eldest son, John, a former college professor with what reads as a fairly unconventional lifestyle, also refused to accept the estate, citing an unwillingness to pay taxes as a reason. In the various articles you see from a Google search, it not entirely clear why John did not want to formally take possession of the property., "Taxes" do not seem to be the actual reason, since John would have owed no U.S. tax to accept the property, and any UK tax could be paid by selling some of the property or through the collection of rental income. <br />
<br />
Finally, when John died in 2011, the English Court was able to entertain a motion to amend the original Will to allow John's sisters to inherit the property. This ruling was disappointing to William, a male cousin, but is welcomed by the local residents who now know the estate, which has been vacant since at least the 1940s, may now be rehabilitated by the new owner.<br />
<br />
What is sometimes glossed over in the articles (since the thought of any "unclaimed" estate is so entertaining to those of us who will never inherit an estate in the first place) is that the court appointed administrator in England had actually been renting the land out and collecting the rents during this time period. This is what would happen in a California court if any heir could not be located -- the administration of the estate would continue, and distributions would be postponed until the heir was able to accept them. What makes the Figg-Hoblyn story so unusual is the length of time that a known heir refuses an inheritance. <br />
<br />
The full article can be found here: http://www.dailymail.co.uk/news/article-2293296/The-5million-Cornwall-estate-left-ruins-rightful-male-heir-claim-40-years.html, or simply Google "Hoblyn estate" for further reading.<br />
<br />
Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and
Mooney, A Partnership.<br />
For a free 30 minute consultation (telephonic or
in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call
him at (626) 793-3210. The firm website is <a href="http://www.moravecslaw.com/">www.moravecslaw.com</a><br />
<span style="font-family: 'Trebuchet MS', sans-serif;"><br /></span>
<span style="font-family: 'Trebuchet MS', sans-serif;">The firm's office is located at </span><a href="http://maps.google.com/maps?hl=en&rlz=1G1GGLQ_ENUS319&=&q=moravecs%20san%20marino&um=1&ie=UTF-8&sa=N&tab=wl" style="font-family: 'Trebuchet MS', sans-serif;">2233 Huntington Drive, Suite 17, San Marino, California 91108</a><span style="font-family: 'Trebuchet MS', sans-serif;">. There is ample free parking.</span><br />
<br />Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-5808111793848611452013-01-31T13:51:00.000-08:002013-09-12T08:02:16.477-07:00Litigation in the Probate Courts, Part I - What Will Happen If Someone Files A Lawsuit In Probate Court?<div class="separator" style="clear: both; text-align: center;">
<a href="http://2.bp.blogspot.com/-YD7YQ7ptle0/UQrl6wDLjlI/AAAAAAAAAXY/J8QN639GD94/s1600/Nickle.JPG" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://2.bp.blogspot.com/-YD7YQ7ptle0/UQrl6wDLjlI/AAAAAAAAAXY/J8QN639GD94/s1600/Nickle.JPG" height="320" width="240" /></a></div>
<b><a href="http://www.moravecslaw.com/probate" target="_blank">What Will Happen If Someone Files A Lawsuit In Probate Court?</a></b><br />
<br />
One common question that arises in the area of our practice which focuses on resolving disputes among executors, <a href="http://www.moravecslaw.com/beneficiary__trustee_representation" target="_blank">trustees</a>, and <a href="http://www.moravecslaw.com/beneficiary__trustee_representation" target="_blank">beneficiaries</a> is: "what will happen if someone files a lawsuit in Probate Court?" It's the client's "nickle" if legal fees mount up, so its not only a fair question, but a critical one.<br />
<br />
The answer to that question is something everyone who is focusing on their own estate planning ought to know, and something a person who is involved in an estate administration should absolutely know. Not knowing can lead to bad decisions which are difficult and expensive to fix at a later date. I will explore this topic over a series of posts.<br />
<br />
The "normal functions" of the Probate Court are simply:<br />
-- to figure out who is entitled to the property of someone who died, and<br />
-- to also administer the estates of people who can no longer legally take care of themselves (guardianships and conservatorships).<br />
<br />
This series of posts will focus on the estate and trust litigation process, but the possibilities for disputes in guardianships and conservatorships are just as frequent and can be even more frustrating.<br />
<br />
<b>Difference Between Civil Litigation and Probate Litigation</b><br />
<b><br /></b>
What I often tell clients is that there is a <b>big</b> difference between general civil litigation and <a href="http://www.moravecslaw.com/probate" target="_blank">probate litigation</a>. In general civil litigation: the vast, vast majority of disputes (which are not a matter of divorce proceedings) involve an insurance company as the ultimate paying party. General civil matters end up essentially boiling down to a war of attrition, where the insurance company who is defending the matter finally decides what the case is worth to go away. There are also a large contingent of employment related disputes, where you substitute an employer (usually a large one, since small employers do not have large amounts of money) for the insurance company.<br />
<br />
In a probate or trust dispute litigation, however, there is rarely, if ever, an insurance company involved, the matters tend to be highly emotional (more on that below). The first "stage," if you will, is sorting out the <u>dispute</u> from the actual <u>amount in dispute</u>. <br />
<br />
For example, in a $100,000 estate, the maximum amount in dispute is a maximum of $100,000. In a $1,000,000 estate, the maximum amount in dispute is $1,000,000 and so on. <br />
<br />
<b>Emotional Losses Can Exceed The Monetary Loss (Case Study)</b><br />
<b><br /></b>
The most common emotion we see is a client who has an "emotional loss" which far exceeds the monetary loss. Here is a case study in this which is common in our practice.<br />
<br />
A brother was certain his sister had been taking advantage of their father prior to and after their father's death. In the first few hours of investigating, we found $40,000 had been improperly transferred. We wrote a demand letter and the sister agreed to reimburse the estate. Since the sister and the brother were splitting the estate -- that $40,000 improper transfer was worth $20,000 to the brother (the sister was entitled to the other half). At this point, the brother had spent only a few thousand dollars in attorneys' fees.<br />
<br />
Then, a very familiar emotion kicked in. The brother was upset that his sister had taken $20,000 that should have gone to him. Brother also became upset that he had to hire an attorney to protect his rights. Based on this emotion, he embarked on a hunt to see what other improper transfers or expenses his sister "might" have made in the estate. After many more thousands of dollars in legal fees -- and at least a hundred hours of his own time -- he found a trip to the Home Depot for $325 that the sister charged to her father that she should have paid herself.<br />
<br />
In the end, the case settled because both brother and sister realized that there was only so much involved and that a search, involving lawyers, for total certainty, was simply too expensive. They would both (especially our client) have to be satisfied with what I would call "<b>partial certaint</b>y" - they did not know for certain that every nickel had been accounted for, but they did know that the overall result was relatively fair, and that more litigation was not worth it.<br />
<br />
One reason that the case settled with a relatively small attorney cost was that opposing counsel was an experienced probate attorney who knew, from the beginning, how to advise his client about her duties and moreover, that the case should settle. In future installments, I will tell a horror story or two about what can happen if a general civil litigator is involved in a probate litigation.<br />
<br />
<b>Probate Litigation Lesson </b><br />
<br />
We all have parents. Many of us have siblings. In any case no one has a perfect relationship with all members of their family. Thus, the lesson to be learned from the above story is that the death of a parent and an inheritance can fray almost any family bond. Before you make a decision based on those very understandable emotions, call us or any experienced probate lawyer. Although it may not seem like it, it could save you quite a bit of money down the road.<br />
<br />
As a trustee or executor, you can be sure not to make an inadvertent mistake that riles up beneficiaries for no reason. As a beneficiary, you can be sure not to throw allegations at a trustee who may actually be doing their best. Either way you can replace emotions with knowledge, which is always a good deal. <br />
<br />
An experienced and honest probate lawyer will help you create a strategy from the outside and not simply capitalize on the normal emotions that are inherent in these cases. When you need to be aggressive - they will also know how to be efficiently aggressive to help you win or obtain the best possible result.<br />
<br />
<br />
Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and
Mooney, A Partnership.<br />
For a free 30 minute consultation (telephonic or
in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call
him at (626) 793-3210 or (818) 769-4221. The firm website is <a href="http://www.moravecslaw.com/">www.moravecslaw.com</a><br />
<br />
<span style="font-family: Times, 'Times New Roman', serif;">The firm's office is located at </span><a href="http://maps.google.com/maps?hl=en&rlz=1G1GGLQ_ENUS319&=&q=moravecs%20san%20marino&um=1&ie=UTF-8&sa=N&tab=wl" style="font-family: Times, 'Times New Roman', serif;">2233 Huntington Drive, Suite 17, San Marino, California 91108</a><span style="font-family: Times, 'Times New Roman', serif;"> and there is ample free parking</span><span style="font-family: Times, 'Times New Roman', serif;">.</span>Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-52057399672095005942013-01-28T17:01:00.000-08:002013-09-12T08:06:19.194-07:007 Strategies To Reduce Potential For Probate Litigation<div class="separator" style="clear: both; text-align: center;">
<a href="http://3.bp.blogspot.com/-XKxs9LwDI6Q/SbZY0i4gjNI/AAAAAAAAABk/u6TCbqy3EqI/s1600/334849507_209081f5d6_m.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://3.bp.blogspot.com/-XKxs9LwDI6Q/SbZY0i4gjNI/AAAAAAAAABk/u6TCbqy3EqI/s1600/334849507_209081f5d6_m.jpg" /></a></div>
<span style="font-size: 100%;">The increase in <a href="http://www.moravecslaw.com/probate" target="_blank">probate litigatio</a>n in
our practice continues. We had speculated last year that this might be
due to the economy and shrinking real estate values in California. Even
when litigation is necessary, and we have had to aggressively defend
our clients or trustees -- we know that litigation can be costly,
time-consuming and destructive to family relationships.<br /><br />Accordingly,
I wrote a post a couple of years ago addressing the question of how to
reduce the risk of litigation in the estate and <a href="http://www.moravecslaw.com/trust_administration" target="_blank">trust context</a> during
the planning stage. Although these methods are not guaranteed ways of
avoiding litigation and every estate plan is different -- the ideas
here are useful starting points to consider in the estate planning
stage.</span><br />
<span style="font-size: 100%;"><br /></span>
<span style="font-size: 100%;">We had
previously listed six strategies to reduce the potential for
litigation, but please take note of the new number 7, which recent
experience has shown may be the most effective: </span><br />
<div>
<span style="font-size: 100%;"><br /><b>1. Advise Inheritors of Inheritance Plans.</b> </span><br />
<span style="font-size: 100%;">Especially when children of the decedent are treated unequally, will
contests and litigation arise from disappointed feelings of entitlement. Telling the children ahead of time what their shares will be may avoid
a later dispute. One could enter into a contract (for consideration
or something of value) with such a person that he or she will <span style="font-weight: bold;">not </span>object
to the validity of the document. Be careful however, that advising a
child that he or she will not receive an equal share may have adverse
effects even if it prevents litigation after death. Thus, informing
inheritors of the plans could cause family problems in the present.
This will vary from family to family.<br /><br /><b>2. Use a Revocable Trust in Lieu of a Will.</b> </span><br />
<span style="font-size: 100%;"> Since a revocable trust can be funded and operate during lifetime, it
is difficult to contest on the grounds that the individual was unaware
of its terms. When the Settlor of the trust dies, there is no need to
begin a court proceeding to "prove" the validity of the trust, such as
there is for a will.<br /><br /><b>3. Use an Irrevocable Trust in Lieu of a Will or Revocable Trust.</b> </span><br />
<span style="font-size: 100%;"> An irrevocable trust is even less likely, in my experience, to be
challenged than a revocable trust. Irrevocable trusts can be drafted in
such a way so that transfers of property to them are not completed
gifts. However, there are other risks and issues with irrevocable trusts
that must be considered. <br /><br />Alternatively, making a transfer that
is a completed gift, paying gift tax, and filing a gift tax return
disclosing details may be additional evidence that the transfer was
truly intended. Again, I believe that a lifetime trust that is
significantly funded is less likely to be challenged.<br /><br /><b>4. Use a Disinheritance Or No Contest Clause.</b> </span><br />
<span style="font-size: 100%;">If the testator lives in a state such as California that will enforce
it under certain circumstances, a disinheritance clause (also called an
<i>in terrorem</i> clause for the Latin word "in fear") could be used.
The goal here is to prevent beneficiaries from causing a legal ruckus
after the testator is gone. A lot of trust and estate litigation is not
about the validity of the document, it is about its interpretation or
about actions taken by the fiduciary. In order to reduce this type of
litigation, a disinheritance clause can cause a forfeiture of a
beneficiary's interest if such a challenge is made. The entire estate
plan must be consistent with this clause. </span></div>
<div>
<span style="font-size: 100%;"><br />With
the advent of passage of Senate Bill 1264 which enacts Probate Code
Sections 21310-21315 effective January 1, 2010, California's "no
contest" law has been significantly weakened. This weakening affects
wills and trusts that became irrevocable after January 1, 2001 and
later. "No contest" clauses traditionally penalize parties who attempt
to attack a will or a trust. Now, it will be significantly easier to
attack a will or a trust in California.</span></div>
<div>
<span style="font-size: 100%;">To review Senate Bill 1264, go to: <a href="http://info.sen.ca.gov/pub/07-08/bill/sen/sb_1251-1300/sb_1264_bill_20080707_enrolled.pdf">http://info.sen.ca.gov/pub/07-08/bill/sen/sb_1251-1300/sb_1264_bill_20080707_enrolled.pdf</a></span></div>
<div>
<span style="font-size: 100%;"><br /><b>5. Use Mediation or Arbitration Provisions.</b> </span><br />
<span style="font-size: 100%;">Arbitration or mediation cannot be used with respect to the challenge
of a document's validity unless the parties agree to it. Using a
disinheritance clause to cause forfeiture if the parties will not
participate can be used. This could stop claims that are filed only to
harass other beneficiaries or to delay distributions to others. Another
approach would be having the parties enter into a contract agreeing to
arbitration before the transfer.<br /><br /><b>6. Use a Condition Precedent to a Bequest as an Alternative Method of Causing Participation in Mediation or Arbitration.</b> </span><br />
<span style="font-size: 100%;">Since a person cannot be forced to participate in arbitration or
mediation unless the law provides for enforcement, consideration must be
given to how to get parties to use these methods. On<span id="goog_1346245021"></span><span id="goog_1346245022"></span><a href="http://www.blogger.com/"></a>e can use the
carrot instead of the stick. Parties can be given a benefit if they
consent to use arbitration or mediation instead of resorting to court.</span><br />
<br />
<span style="font-size: 100%;"><b>7. If a particular beneficiary shows signs of being difficult, make the gift to that beneficiary a specific gift.</b> </span><br />
<span style="font-size: 100%;">The wisdom of this particular method has been illustrated by a current
matter in our office. Consider the difference between giving a
beneficiary 20% of the estate, or $1,000,000. If the former, that
<a href="http://www.moravecslaw.com/beneficiary__trustee_representation" target="_blank">beneficiary</a> may object to the valuation of all of the estate assets,
i.e. "I don't think that property is worth $1,000,000, I think it is
worth $1,500,000. You are trying to under value it!" If the latter,
the specific gift may be paid in cash or currently valued securities,
thus vastly reducing the area of dispute. If the assets are of a
sufficient value to draft the plan this way, much argument may be
avoided.<br /><br />When creating estate plans or trust documents it is
important to consider the potential for litigation and whether it
should be addressed prior to the death or after the death of the people
creating it. While much can be done prior to death to resolve
potential disputes and keep communications open, often issues only
arise after the death of the trustees. During the estate planning
stage, this is the time for you to consider what can be done to reduce
the likelihood of estate and trust litigation.</span><span style="font-family: lucida grande; font-size: 100%;"><br /><br />Posted by <a href="http://www.moravecslaw.com/about_us">Henry (Hank) J. Moravec, III</a>,
a partner at Moravec, Varga and Mooney, A Partnership. For a
free 30 minute consultation (telephonic or in person), you can e-mail
Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or
(818) 769-4221.</span><span style="font-size: 100%;"><br /></span></div>
<span style="font-size: 100%;"><span style="font-family: ';"><span style="font-size: 100%;"><br /><span style="font-family: lucida grande;">With respect to probate, Hank Moravec has over 20 years' experience as one of the </span><a href="http://www.moravecslaw.com/probate" style="font-family: lucida grande;">best Los Angeles probate attorneys</a><span style="font-family: lucida grande;"> and </span><a href="http://www.moravecslaw.com/probate" style="font-family: lucida grande;">Los Angeles probate litigation attorneys</a><span style="font-family: lucida grande;">
and is available should you need legal advice regarding your own or a
family member's situation. For a consultation, You can e-mail Hank
Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818)
769-4221 to request a consultation.</span></span><span style="font-family: lucida grande; font-size: 100%;"><br /><br />The firm <a href="http://www.moravecslaw.com/">website</a> is <a href="http://www.moravecslaw.com/">http://www.moravecslaw.com/</a>. </span></span></span>Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-64234153794713155162012-07-21T08:51:00.001-07:002013-04-03T18:31:51.837-07:00Seven Questions I Ask Clients When Mediating Estate And Family Property Conflicts<div class="separator" style="clear: both; text-align: center;">
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<span style="font-family: 'Trebuchet MS', sans-serif;">I have noticed an increase in the number of estates, trusts, and probate-related disputes over the last few years. Part of the increase may be our aging baby boomer population and part of it may be due to the economic downturn. In some of our cases, we use mediation to resolve these disputes -- entire cases or isolated issues. </span><br />
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<span style="font-family: 'Trebuchet MS', sans-serif;">For example, in cases in which a residence is the sole or primary asset, mediation with regard to a possible expedited sale of the house with the proceeds to be put in escrow pending resolution of the lawsuit can benefit the parties since empty houses deteriorate rapidly and are difficult to insure. Such a sale can also serve as a reality check for the parties who may be improperly estimating the fair market value of the house. </span><br />
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<span style="font-family: 'Trebuchet MS', sans-serif;">Why is mediation used even when each side is sure that he or she is absolutely right or the opposing party seems impossible? Here are 5 reasons: First, it can help save litigation expenses and prevent the estate from being dissipated by legal fees. Due to court cutbacks, it takes longer to obtain hearings and cases can last for years. Second, it maintains our clients' confidentiality and keeps fights out of the public eye. In litigation, court filings are public where mediation can allow the records to be confidential.
Third, it can preserve family relationships or prevent family relationships from deteriorating further.Mediation can address underlying family conflicts and take into account emotions and family dynamics in considering legal obligations and rights. </span><br />
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<span style="font-family: 'Trebuchet MS', sans-serif;">Fourth, it allows us to obtain certainty and ensure tax savings which may not happen in litigation when a judge is deciding the case. Fifth, it allows us to use creative solutions that may not be typical legal remedies that a court can apply. In mediation we can air and acknowledge complicated emotional issues that were preventing early settlement and we can develop flexible solutions to accommodate different interests. </span><br />
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<span style="font-family: 'Trebuchet MS', sans-serif;">Here are some questions I ask clients when we are considering mediation. This is based on cases where we have agreed to mediate conflicts in order to preserve family wealth and promote family relationships. </span><br />
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<li><span style="font-family: 'Trebuchet MS', sans-serif;"><b>Is the conflict ripe for mediation and are the parties motivated?</b> Mediation should occur when planning and decision making cannot continue because of unresolved conflict and the parties understand that opportunities are being lost or extra expenses and legal fees are being incurred. Mediation usually happens after we have hit a wall in the settlement process where having an experienced third party mediator can make a difference. Mediation can occur before, during, or after court proceedings.</span></li>
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<li><span style="font-family: 'Trebuchet MS', sans-serif;"><b>What are the goals for mediation? </b>I help clients identify the goals in specific terms. Do you want the best possible monetary outcome, family peace, specific property, preservation of assets or other goals? </span></li>
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<li><span style="font-family: 'Trebuchet MS', sans-serif;"><b>Who should participate in the mediation? </b>
Probate cases usually involve a high degree of emotionality and numerous parties. There may be multiple decision makers (spouses, children, advisors, and significant others). If someone can veto the agreement or is necessary for it to work, consider whether that person should be at the mediation.</span></li>
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<li><span style="font-family: 'Trebuchet MS', sans-serif;"><b>Are you and the lawyers prepared? </b> Thorough preparation is often the key to success. It is important to have researched the underlying facts and the law with respect to the outstanding issues <u>before</u> going to mediation. Sometimes the key to successful resolution may lie in creative use of the tax laws. I also spend time identifying the strengths and weaknesses of both sides' positions. I usually prepare a confidential Settlement Brief providing the mediator with necessary information and background information. I will also highlight my clients' strengths and give the mediator the other sides' weaknesses. I summarize the history of prior settlement attempts and offers. I often provide the mediator with copies of relevant cases and/or statutes. Sometimes I will present expert or financial reports to help the mediator understand the issues. </span></li>
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<li><span style="font-family: 'Trebuchet MS', sans-serif;"><b>Who should be the mediator? </b>Mediators have different styles and approaches. Will the parties respect a former probate judge? Do the personalities and situation require an authoritative mediator to evaluates alternatives and suggests outcomes? Or would the parties respond better to a more facilitative mediator who helps the parties work out their own agreement?</span></li>
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<li><span style="font-family: 'Trebuchet MS', sans-serif;"><b>Do we have a negotiation plan? </b>In order to be assured of getting what my client wants most, I help prioritize my client's interests, prepare a general strategy and consider which concessions might help achieve the identified goals. It sometimes takes more than 1 session to reach agreements and my client needs to be prepared to be patient and keep emotions in check and not simply issue ultimatums. Some mediations are marathons and not sprints. </span></li>
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<li><span style="font-family: 'Trebuchet MS', sans-serif;"><b>Can we bring our proposed settlement agreement to the mediation?</b> If I have cases where clients know what specific wording or stipulations are needed, I will bring a draft agreement, release or settlement on a memory device or laptop to the mediation to be revised as needed. Careful drafting is required for a mediated agreement to be enforceable and it is best to obtain the signatures the day of the mediation to avoid future disputes or someone changing their mind. </span></li>
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Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney, A Partnership. For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) 769-4221. The firm website is <a href="http://www.moravecslaw.com/">www.moravecslaw.com</a><br />
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The firm has two offices and consultations and meetings can be held at either office. There is ample free parking adjacent to the firm's offices.<br />
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<span style="font-family: 'Trebuchet MS', sans-serif;">The San Gabriel Valley office is located at <a href="http://maps.google.com/maps?hl=en&rlz=1G1GGLQ_ENUS319&=&q=moravecs%20san%20marino&um=1&ie=UTF-8&sa=N&tab=wl">2233 Huntington Drive, Suite 17, San Marino, California 91108</a>.</span><br />
The San Fernando Valley office is located at <a href="http://maps.google.com/maps?hl=en&q=4605+Lankershim+Boulevard+North+Hollywood+CA&ie=UTF8&hq=&hnear=4605+Lankershim+Blvd,+North+Hollywood,+Los+Angeles,+California+91602&ll=34.155284,-118.368523&spn=0.008417,0.018883&t=h&z=16&iwloc=r7">4605 Lankershim Boulevard, Suite 718,</a><a href="http://maps.google.com/maps?hl=en&q=4605+Lankershim+Boulevard+North+Hollywood+CA&ie=UTF8&hq=&hnear=4605+Lankershim+Blvd,+North+Hollywood,+Los+Angeles,+California+91602&ll=34.155284,-118.368523&spn=0.008417,0.018883&t=h&z=16&iwloc=r7"> North Hollywood, California 91602-1878</a>.</div>
Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-44308940373415874032012-07-16T12:59:00.003-07:002012-07-21T09:09:48.951-07:00FAQ: What Is A Conservatorship And When Is It Necessary?<br />
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What are conservatorships? In California and other states, all adults are considered capable of handling their own affairs unless a Judge determines otherwise. In California, this legal arrangement is called a conservatorship. Conservatorships are established for impaired adults, mot often older people. Adults who are developmentally disabled or the victims of a catastrophic illness or accident may also have a conservatorship. We work with families in filing for conservatorship, opposing meritless petitions and other litigation surrounding conservatorships. We also work on the planning stage to address these issues in advance.</div>
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Conservatorship of the Person</h2>
A conservatorship of the person is a court case in which a Judge appoints a responsible person or organization (known as a conservator) to care for another adult who cannot care for him or herself (known as a conservatee). Anyone - a parent, spouse, child, other relative, or friend of the adult - can apply for a conservatorship. The two most common type of probate conservatorships are general and limited. LPS conservatorships are used to care for adults with serious mental health illnesses and they must be started by a local government agency. </div>
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Once you are appointed conservator, it becomes your legal responsibility to provide care for the conservatee's daily needs. Therefore, it is important to consider less demanding alternatives to conservatorship. The convservatorships must be filed in the county in which the person resides. </div>
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When Conservatorship is Necessary</h2>
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Establishing a conservatorship is a formal legal proceeding and involves several steps. Some adults who are concerned about possible future mental and physical incapacity decide to establish a power of attorney or a trust, in part so they can avoid the court action. They choose an individual or an institution to make decisions for them if they become impaired. These are private arrangements and must be made while the person has full mental capacity. </div>
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In California, courts do not routinely monitor powers of attorney or trusts. Most people do not make these arrangements probably because it is difficult to think about becoming incapacitated mentally or physically. For those who have not made prior arrangements, or if the person handling the power of attorney or trust is incapable, or a controversy arises as to their services, a conservatorship may become necessary.</div>
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After a Conservatorship is Established</h2>
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Management of Wealth and Property</h4>
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When a conservatorship is established, the Judge will require that a bond be obtained equal to the combined value of the liquid assets and annual income in the person's estate. Liquid assets include bank accounts and stocks. A bond is like an insurance policy. If the conservator mishandles the money or takes it, the person in conservatorship can be reimbursed.</div>
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The Judge also schedules the case for Court monitoring of the finances and property of the person in conservatorship as well as his or her welfare. The law requires that an Inventory and Appraisal of all assets be filed within 90 days of the appointment of the conservator. The conservator must also file a General Plan for the conservatorship. If the conservatee has any real property, the conservator must record evidence of the conservatorship with The Recorder of the City and County of San Francisco.</div>
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One Year Review</h3>
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One year after the appointment of the conservator and every two years thereafter, an accounting of the assets, including the income and the expenditures must be filed with the Court. The accounting is reviewed in detail by a probate examiner. An investigator personally interviews the individual in conservatorship periodically and determines if the conservator is acting properly.</div>
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Non-Family Conservators</h2>
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There are times when family members are unavailable or incapable of serving as conservators. Occasionally, the person who is thought to need a conservator does not want a family member to be the conservator. In those situations, there are agencies and individuals that can serve. The Public Guardian is an agency of the City and County of San Francisco and is the conservator in the largest number of non-family cases. There are also non-profit agencies that have complied with the law and can be appointed to serve as conservators. In addition there are individuals who are available to serve. They are called private professional conservators. As of July 1, 2008, they must be licensed by the State of California and meet ongoing educational requirements. All professional conservators are expected to keep a case and provide services even if the money runs out, especially if they have been appointed to serve as conservator of the person.</div>
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All conservators and attorneys in a conservatorship case are entitled to request the Court for fees for their work. The fees are carefully reviewed and granted by the Probate Court only if they have been properly justified. Conservators and attorneys cannot take money without a formal court order.</div>
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Those Most in Need of Conservatorship</h2>
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Conservatorships affect mainly older people, especially those over 85 years of age. Coincidentally, the fastest growing age group in the United States is the one over 85 years of age. In California, that age group will increase by 143 percent between 1990 and 2020. Some counties will experience even higher rates, up to 400 percent. The influence of the 85 and older age group will emerge most strongly between 2030 and 2040 as the first of the baby boomers reaches 85 years of age (<a href="http://www.aging.ca.gov/" style="color: #073873; outline: none;" target="_blank">http://www.aging.ca.gov</a>).</div>
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With the right genes, healthy living, and luck, most people will escape being incapacitated. However, many Californians will have impairments and will need help with daily living. Most likely the number of conservatorships will increase over time. Fortunately, the California legislature has mandated many court safeguards for those who need conservatorships.</div>
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Posted by <a href="http://www.moravecslaw.com/about_us">Henry (Hank) J. Moravec, III</a>, a partner at Moravec, Varga and Mooney, A Partnership. For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) 769-4221.<br />
The firm <a href="http://www.moravecslaw.com/">website</a> is <a href="http://www.moravecslaw.com/">http://www.moravecslaw.com/</a>. The firm has two offices and consultations and meetings can be held at either office. There is ample free parking adjacent to the firm's offices.<br />
<br />
The San Gabriel Valley office is located at <a href="http://maps.google.com/maps?hl=en&rlz=1G1GGLQ_ENUS319&=&q=moravecs%20san%20marino&um=1&ie=UTF-8&sa=N&tab=wl">2233 Huntington Drive, Suite 17, San Marino, California 91108</a>.<br />
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The San Fernando Valley office is located at <span dir="ltr"><a href="http://maps.google.com/maps?hl=en&q=4605+Lankershim+Boulevard+North+Hollywood+CA&ie=UTF8&hq=&hnear=4605+Lankershim+Blvd,+North+Hollywood,+Los+Angeles,+California+91602&ll=34.155284,-118.368523&spn=0.008417,0.018883&t=h&z=16&iwloc=r7">4605 Lankershim Boulevard, Suite 718,</a></span><span dir="ltr"><a href="http://maps.google.com/maps?hl=en&q=4605+Lankershim+Boulevard+North+Hollywood+CA&ie=UTF8&hq=&hnear=4605+Lankershim+Blvd,+North+Hollywood,+Los+Angeles,+California+91602&ll=34.155284,-118.368523&spn=0.008417,0.018883&t=h&z=16&iwloc=r7"> North Hollywood, California 91602-1878</a>.</span></div>
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<br />Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-64855032799589683482012-06-23T06:39:00.001-07:002012-06-23T06:40:07.033-07:00Owners Of Businesses Should Consider Creating A Succession Plan: Don't Let Your Business Become An Orphan<div class="separator" style="clear: both; text-align: center;">
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<span style="color: #444444; font-family: sans-serif; font-size: 14px; line-height: 18px;">The New York Times recently had a guest article entitled "<a href="http://boss.blogs.nytimes.com/2012/04/25/is-my-family-business-going-to-be-an-orphan/">Is My Family Business Going To Be An Orphan?</a>" written by an entrepreneur who owns five businesses. It is insightful since the writer held a meeting with his family to discuss succession and shares his experience.</span><br />
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<span style="color: #444444; font-family: sans-serif; font-size: 14px; line-height: 18px;">The general school of thought is that small business owners and professional businesses should start succession planning 5 to 10 years before the anticipated transition. We also want clients to consider what happens if if they become disabled or pass away before that time. Does anyone want their business to be passed through a will (not recommended) or without one?</span><br />
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<span style="color: #444444; font-family: sans-serif; font-size: 14px; line-height: 18px;">Why does this important business plan get delayed? Many business owners are so focused on day-to-day business operations that they fail to invest the time to develop a succession strategy. Each company is different but we like to ask some basic questions to help clients focus on their goals: Is most of the client's estate tied up in the business? Is there a spouse or children to support after the owner's death or disability? Are there any family members working in the business? Does the business require special licensure to own and operate the business (medical practice for example)?</span><br />
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<span style="color: #444444; font-family: sans-serif; font-size: 14px; line-height: 18px;">When we meet with business owners, we combine estate planning with corporate and financial considerations so that the client can consider all options. Options can include selling, transitioning to a family member or business partner, or dissolving the business. Many complex issues should be evaluated during succession planning before coming to a decision because each business is different.</span><br />
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<span style="color: #444444; font-family: sans-serif; font-size: 14px; line-height: 18px;">Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga and Mooney. For a complimentary 30 minute consultation (telephonic or in person), you can email Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210. The firm website is <a href="http://www.moravecslaw.com/">http://www.moravecslaw.com</a></span><br />
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<span style="color: #444444; font-family: sans-serif;"><span style="font-size: 14px; line-height: 18px;"><br /></span></span>Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.comtag:blogger.com,1999:blog-935899885678695097.post-85060577431700534232012-05-16T08:45:00.000-07:002012-05-16T08:45:21.342-07:00Trust Administrator Charged With Grand Theft, Perjury and Forgery In Ventura County California<div class="separator" style="clear: both; text-align: center;">
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<span style="color: black; font-size: 100%;"><span style="font-size: 100%;">We see numerous cases where there are allegations of wrongdoing in the administration of estates, however, a recent case turned criminal. On February 13, 2012, the Ventura County District Attorney's Office arrested </span><span style="font-size: 100%;"> Geoffrey Charles Sjostrom (DOB 09-25-1954), of Simi Valley, and charged him with nine felony charges, including grand theft, perjury, forgery, and the aggravated white collar crime enhancement. His bail was initially set at $200,000.</span></span></div>
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<span style="color: black; font-size: 100%;"><span style="font-size: 100%;">The criminal complaint alleges that Mr. Sjostrom </span>was a friend of Francis J. Copland, who died in 2005. Before Mr. Copland died, he prepared a trust and a will, naming Mr. Sjostrom to administer both. In his estate documents, Mr. Copland left all of his property to family members. After Mr. Copland's death, Mr. Sjostrom failed to probate Mr. Copland's will and failed to properly account for Mr. Copland's trust property.</span></div>
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<span style="color: black; font-size: 100%;">The probate court removed Mr. Sjostrom as trustee and ordered him to account for Mr. Copland's property. At that point, Mr. Sjostrom allegedly filed a sworn declaration claiming Mr. Copland had exhausted his bank accounts when he died. A successor trustee was appointed and discovered this information was false. The successor trustee found that Mr. Copland had money in various accounts when he died and that then trustee Mr. Sjostrom methodically took more than $250,000 from those accounts by means of check and ATM withdrawals. </span><span style="font-size: 100%;">If convicted of all charges Sjostrom faces up to 11 years in state prison.</span></div>
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<span style="font-size: 100%;">Thus, apart from the fiduciary duties that administrators have to beneficiaries and the estate, it is critical to remember that basic criminal law can come in play if there is misappropriation of funds or pleadings filed under the penalty of perjury.</span></div>
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Posted by <a href="http://www.moravecslaw.com/about_us">Henry (Hank) J. Moravec, III</a>, a partner at Moravec, Varga & Mooney, A Partnership. For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) 769-4221.<br />
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The firm <a href="http://www.moravecslaw.com/">website</a> is <a href="http://www.moravecslaw.com/">http://www.moravecslaw.com/</a>. The firm has two offices and consultations and meetings can be held at either office.<br />
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The San Gabriel Valley office is located at <a href="http://maps.google.com/maps?hl=en&rlz=1G1GGLQ_ENUS319&=&q=moravecs%20san%20marino&um=1&ie=UTF-8&sa=N&tab=wl">2233 Huntington Drive, Suite 17, San Marino, California 91108</a>. There is ample free parking adjacent to the firm's office.<br />
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The San Fernando Valley office is located at <span dir="ltr"><a href="http://maps.google.com/maps?hl=en&q=4605+Lankershim+Boulevard+North+Hollywood+CA&ie=UTF8&hq=&hnear=4605+Lankershim+Blvd,+North+Hollywood,+Los+Angeles,+California+91602&ll=34.155284,-118.368523&spn=0.008417,0.018883&t=h&z=16&iwloc=r7">4605 Lankershim Boulevard, Suite 718,</a></span><span dir="ltr"><a href="http://maps.google.com/maps?hl=en&q=4605+Lankershim+Boulevard+North+Hollywood+CA&ie=UTF8&hq=&hnear=4605+Lankershim+Blvd,+North+Hollywood,+Los+Angeles,+California+91602&ll=34.155284,-118.368523&spn=0.008417,0.018883&t=h&z=16&iwloc=r7"> North Hollywood, California 91602-1878</a>.</span></div>
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<span style="font-family: 'Times New Roman'; font-size: 100%;"><br /></span></div>Los Angeles Estate, Probate And Tax Law Bloghttp://www.blogger.com/profile/09315860327388241109noreply@blogger.com