Contrary to popular belief, estate planning is not just for the wealthy. Proper estate planning can result in elimination of probate fees on your death and substantial financial and emotional savings to your survivors.
If you own anything at all you should arrange for the property to go to your beneficiaries in the best way possible. When thinking of your “estate” do not think only in terms of physical property but also include your savings, interests in any business you may own or operate, life insurance, stock, securities, bonds, pension and profit sharing plans, partnership interests, timeshares, cars, jewelry, stamp and coin collections, digital assets, and bank accounts.
No two forms of estate planning are identical. Each estate plan results from different considerations — whether you have a family and its size, the types of property you own and your dispositive wishes. The most common type of estate plan is a “will.” When you die your will and any trust which you may create determine what will happen to your assets.
Your will designates who will receive your estate and sets forth a plan for the future of your children in the event of a calamity. Should both you and your spouse die simultaneously, your will may name a person or persons to take care of your children and to manage their money. You can also choose an executor who will gather up your property, pay your debts, and deliver the balance of your estate to your children, to beneficiaries you have selected or to the trust which you might have established for the benefit of your survivors-subject to formal probate processes which vary from state to state.
In this day and age where the frequent talk is on means of “avoiding probate” it should be noted that a will does not avoid probate. After your death your will is filed with the county clerk and the Probate Court determines if your will is valid. The executor named is appointed by the Court and the Court supervises the executor’s work. The probate process in California takes approximately one year for most estates and costs money in the form of statutory attorney’s and executor’s fees based upon a sliding scale as follows: 4% of the first $100,000 of your estate, 3% of the next $100,000, 2% of the next $800,000 and 1% of everything over one million dollars.Your estate will also have to pay for appraisal fees, bond fees, certified document fees and hearing fees which are substantial.
Your estate won’t be subject to probate if you have left all of your estate to your spouse or if your estate is worth no more the $150,000 after your spouse’s share has been paid or if during your lifetime you put all that you own into a “living trust.” Your will traditionally will not dispose of: life insurance, retirement plans, property owned as joint tenants, living trust assets and your spouse’s half of community property assets – all of which usually pass outside of probate.
When you write a will you select those people and organizations who will benefit from your estate and who will administer your estate. If you die “intestate” (without a will) California law will determine who receives the assets. First and foremost, people who aren’t relatives won’t inherit anything. In California the probate court divides your estate among your surviving relatives. Friends and favorite charities won’t receive a dime. Surviving members of an unmarried couple relationship won’t be protected nor will they inherit if you die without a will.
If you are married and survived by your spouse, your spouse is given all of your community property. Part of your separate property will go to your spouse and part to your children, grandchildren, parents, sisters, brothers, nieces, nephews or other close relatives depending on the applicable provisions of the Probate Code. If you have no living relatives and have not left a will, your property will be taken by the state even if a close friend or lover survives you.
While handwritten (“holographic”) wills are legal in California the statute governing those wills is very specific and the slightest failure to comply with every statutory requirement will void a handwritten will. The better practice is to use an attorney to draft a will for you. The fees are rarely high but in all cases, attorney drafted estate planning documents allow you to be more specific with regard to your dispositive wishes and an attorney can recommend other estate planning tools to assure that your wishes will be honored. A lawyer can assist you in completing your estate plan and he can explain the tax consequences of that plan as well.
Each person must have a separate will. The will which you sign remains valid until you either amend it by a subsequently signed written amendment (“a codicil”) or until you write a new will. Your will should be periodically reviewed by an attorney to make sure that it still meets your estate planning needs as the law concerning estates is constantly changing.
Another popular estate planning device, the living trust, can avoid the need to probate your estate. It can save your estate and your beneficiaries thousands of dollars.
Wills are not the tool by which people explain what they wish done with their remains in the event of their deaths. If you wish to be buried or cremated, should you desire to donate your organs to an hospital or should you have specific desires with regard to obituaries or places of burial, you should place this in a letter to be given to your executor in the event of your death. It goes without saying that both your executor and your family should be aware of where your important papers are kept so that upon your death these documents can be easily found.
In this era of advancing medical technology many people have given thought to being kept alive by life support systems. In California, an Advance Health Care Directive permits you to name a friend or relative to make medical decisions for you if you are unable to do so yourself. If you do not feel comfortable asking a friend or relative to make decisions with regard to prolongation of your life, you may set forth your instructions to your physicians in the Advance Health Care Directive which instructs your doctors concerning the use of life support. It must be completed fully and accurately executed or it will not be valid. Options now exist to register Advance Health Care Directives, once signed, with the Secretary of State here in California so that they are accessible should the originals be unavailable when needed in a crisis.
OBTAINING THE HELP YOU NEED
Because wills, trust agreements, and Advance Health Care Directives are legal documents you will want to secure competent assistance in the preparation of your estate planning documents. The cost of our legal services will depend upon your individual estate planning needs and the documents you call upon us to prepare. Please contact us for further information and to schedule an estate planning appointment
For many years it seemed that along with grief and taxes the need to go through protracted probate proceedings upon the death of a loved one was inevitable. There are simple alternatives which permit most individuals to put their property to the best possible use for their benefit during their lifetimes and for the use of their beneficiaries after their death while completely avoiding the grueling, intrusive and costly probate process. The most popular of these estate planning devices is the “Living Trust.”
A living trust allows you to control all of the assets in the trust and to receive the income from the trust assets (which become “trust principal”) while you are alive and, upon your death, the assets transfer to the beneficiaries you designate. During you lifetime, as a primary trustee of the trust, you are free to acquire new trust assets, to sell, borrow against, gift or otherwise dispose of any or all of the trust assets and, in the event that you choose not to be the trustee of your own trust preferring instead a professional trustee or a trusted family member or confidant, a living trust will afford you a means of checking and approving the work of the professional trustee at each step.
CONFIDENTIAL NATURE OF THE LIVING TRUST
Unlike a will which upon death is filed in the courthouse and becomes a matter of public record (and is therefore subject to viewing by all persons who wish to view it), a living trust is typically confidential. Only the trustee and the beneficiaries know about the trust and its terms. In fact, a living trust may be drafted to prevent the beneficiaries from knowing the worth of the trust until after the trustee dies. The manner in which the income of the living trust is used and the names and details about the beneficiaries are equally confidential. Because there is no probate proceeding required when a living trust is properly implemented, a living trust allows you to avoid probate and all that probate entails and a means of avoiding paying substantial probate fees.
Probate is a court procedure in which the affairs of a deceased person are managed with judicial supervision. In California, your assets are inventoried and appraised by a Probate Referee (who receives a fee based upon the value of your assets), your creditors are paid and then your estate is distributed to the beneficiaries specified in your will. Once the Judge orders probate to be commenced on the estate of a decedent who does not have a living trust, the Court first inquires as to the existence and authenticity of any will(s) which the decedent may have created or amended or cancelled/revoked.
During the administration period of the typical probate estate (which usually is about one year) the executor you name in your will must collect your assets, pay your debts and then file an accounting with the court for approval by a judge before the estate can be distributed.
Probate is often a substantial burden upon the survivors of a deceased person. The executor of the estate must hunt down all potential creditors of the decedent’s estate, give them notice of the probate and afford them the right to file creditor’s claims for any obligations owed by the decedent to them. The executor must publish a notice of death in a newspaper and file an inventory and appraisal of all assets of the decedent with the court clerk. Even if your will specifies that your executor does not have to post a bond, the court will order your executor to pay for a bond to assure that the executor does not act improperly while handling your estate or steal your estate’s assets. If he or she does, the bond company will restore the funds to the estate and sue the executor to recover its loss.
Your private and personal financial affairs, like it or not, become a matter of public record. The Inventory which is open to public inspection without any restriction, sets forth account numbers, bank names and branches, lists of your jewelry and items of value, details of your real property holdings and the like.
In instances where the decent is “property rich and cash poor” it is not uncommon that property must be sold in the estate in order to pay estate taxes, income taxes, the attorney’s fees, executor’s fees and the creditor’s claims. It is not difficult to cite instances where widows are turned out of the family home because the home must be sold in order to cover the probate expenses. When real property is sold, the Court may also award the executor and the attorney extraordinary fees above and beyond the statutory fees for their additional effort. Such a determination is up to the Court in its absolute discretion.
In all, even the most competently handled probate case will usually take at least nine months to a year conclude. In some cases where the decedent’s estate is substantial in value or is comprised of multiple parcels of real property or assets which must be sold before the estate can be effectively distributed, the probate estate can run a significantly longer period of time and, in rare instances, as long as three or four years.
On the other hand, if a properly implemented living trust is in place at the date of death, your property can be lawfully transferred through without a probate proceeding. Your creditors will be paid, fees and costs will be kept to a minimum and distribution can occur in 5 or 6 months at an appreciable savings in time, energy and costs.
Living trusts are revocable in the state of California on the condition that when you set up the trust the trust contains a clause stating that the trust is subject to amendment and/or revocation. Of course should you specify in the trust agreement that no changes can be made, the trust will be deemed irrevocable. After establishing a revocable living trust, if you decide to change beneficiaries or terms, the living trust may be amended (rather than completely rewritten) at a substantially reduced cost.
A living trust can be used in conjunction with other estate planning devices to help reduce fees, costs and especially statutory probate fees and save your heirs thousands of dollars. After all, when the taxes are to be paid, they are customarily taken from the estate before the estate is distributed to the beneficiaries. The more money taken in taxes by the government, the less money available to be delivered to the intended beneficiaries of your estate. Probate fees are also eliminated as is the entire probate process by a living trust if properly implemented.
On a recent trip to England I saw a billboard just outside of Hyde Park which read, “DON’T LEAVE YOUR GOODIES TO THE BADDIES – WRITE A WILL.” The message may be cute but it is a fine one nonetheless. Without an effective and properly implemented estate plan, upon your death, your estate and more importantly the lives and affairs of those who survive you may be thrown into upheaval. The law will control the handling of your financial affairs and ultimately a Judge will enforce your wishes as to who is to receive what. But the same law which assures order, cannot always cope with emergencies and family matters (like three or four months of unpaid mortgage payments where there are no funds available to pay them because the probate estate has not been opened yet by the Judge and nobody in the family will be able to do much about that in the absence of spending appreciable funds to seek emergency court orders. Administrators of the estate will be appointed and the estate probated with costs of bonding the administrator and probate fees to be borne by your estate and ultimately, as explained above, your survivors. The long, drawn out and frequently aggravating process of probating an estate will afflict all of your survivors.
If your job constantly has you and your family taking up residence in different states, you should pay special attention to your estate plan. Will and trust provisions which may have been perfectly lawful in the state where your will was drawn, may not be recognized in other states. Periodic review of your estate plan, regardless of where you live, is good preventative medicine. Have you reviewed your will, your living trust and your durable powers of attorney in the past five years? If you haven’t you may be taking a great risk. Unlike fine wines, estate plans do not improve with age. In fact quite the opposite is true.
With births and deaths in the family, acquisitions and sales of personal and real property, and changes in dispositive wishes, today’s estate plan may become out of date in a matter of years. Congress and state legislature continues to enact laws which impact estate plans and estate planning techniques. We are frequently called upon to review old estate plans. We can help you determine the best way to update your plan, if necessary, at minimal expense.
The term “probate” refers to the method by which a deceased person’s assets are gathered together, creditors are paid and the remainder of the estate is distributed to beneficiaries with court supervision. Probate proceedings are usually commenced by the person named in the estate plan or will as the executor of the estate or, if there is no will, by a person who is entitled to petition under the provisions of the Probate Code in the county where the decedent lived at the time of his or her death or where the petitioning personal representative lives.
While any beneficiary technically is permitted by law to initiate probate proceedings, usually the person named in the will as the personal representative/executor, starts the process by filing the original will with the clerk of the court and filing a Petition for Probate. If the decedent died without leaving a will usually a close relative of the decedent (perhaps a surviving spouse or child) will file a Petition for Letters of Administration. The matter is set for hearing and copies of the petition are served on all relatives of the decedent to the second degree by first class mail. A hearing is then conducted in court and the judge will rule on the petition and authorize the executor to act as executor or appoint a personal representative to act if the executor does not wish to act or cannot act or if no executor was named by the decedent. If more than one person files a Petition for Probate or a Petition for Letters of Administration the judge will determine who will serve as the personal representative.
Any individual, spouse or close relative who is named in the will to serve as executor or as a person entitled to serve as the personal representative in the case of persons dying without a will, may petition the court to become authorized to handle the probate administration. If there is no surviving spouse or a child or children of the decedent will apply to the court seeking to be appointed as the personal representative. The person who creates the will names the executor in the will.
It is prudent to hire an attorney to represent you if you are going to serve as a personal representative or executor. Although probate forms are available to the public, the forms are difficult to fill out and the entire probate process is very complicated. Most people find it beneficial and less stressful to engage an experienced lawyer to assist them with the probate process.
As a skilled attorney in the field, I will assist you in marshaling of assets, the inventorying of the estate, payment of creditors’ claims, filing of accountings and reports with the court and the orderly distribution of the estate at the conclusion of the process. Ideally handled and competently supervised, most probate estates close within one year of the date of appointment of the executor. The fees for the attorney are set by statute in most cases and subject to court approval before they can be paid.
California law provides a statutory formula for the payment of both the personal representative and his/her attorney based on a percentage of the value of the assets of the estate as appraised by the Probate Referee. These fees are known as “statutory fees.” Extra fees may be payable to the personal representative and his or her attorney for “extraordinary” services such as the completion of federal estate tax forms, the sale of real property, the administration of an ongoing business or the handling of litigation against the estate. Extraordinary fees are subject to Court approval prior to payment and are paid from the estate prior to the distribution of the assets among the beneficiaries.
All assets owned by the decedent at death are subject to probate if they are not held in a form which spares them from the probate process. For example, in instances of real estate or bank accounts held in “joint tenancy” or real estate or bank accounts held by a trust or “transfer on death accounts” those assets are not subject to probate and they pass outside of probate without court supervision. Similarly some assets that pass by means of a beneficiary designation such as life insurance or retirement accounts may also avoid probate if the beneficiary is not the estate of the decedent. Our office can assist you in determining the proper manner of vesting assets to reduce the likelihood of their being included in the probateable estate.
If the decedent dies without a will, the decedent’s estate must be administered under the laws of “intestacy.” The California law sets forth specific rules for the distribution of an estate where a decedent dies without leaving a will or a trust with instructions as to how dispose of their personal possessions, property and assets. Depending on whether the decedent is survived by a spouse and/or children, the laws of intestacy will divide up the property in various percentages. If there is no surviving spouse and no children or other descendants, California law has additional rules concerning distribution of an estate under such rare circumstances.
If the decedent dies without a will, the decedent’s estate must be administered under the laws of “intestacy.” The California law sets forth specific rules for the distribution of an estate where a decedent dies without leaving a will or a trust with instructions as to how to dispose of their personal possessions, property and assets.
While most people are not aware of it, both the federal government and the State of California collect estate tax on estates of substantial value. The threshold for assets which can pass free of estate tax continues to change. The IRS Form 706 (the Federal Estate Tax return) must be filed nine (9) months after the date of death of the decedent. While it is the responsibility of the personal representative or executor or if there is not probate then the next of kin of the decedent to file the estate tax returns, typically it is the assets of the decedent’s estate which are used to pay those taxes.
Whether the dispute is among family members, creditors making claims against the estate or disputes involving conservatorships or guardianships, contested wills or trust disputes, our offices are here to protect your interests and advocate vigorously on your behalf.
Sadly, but frequently, family members are often pitted against one another in a will or trust contest. The emotional strength, patience and determination required to litigate a trust or will contest is substantial. I recognize the extremely sensitive nature of family disputes and remain committed to protecting your rights and interests and achieving positive results through assertive, aggressive, but especially goal oriented litigation.
FILING A WILL CONTEST
Will contests are filed by people who feel that they have been unfairly omitted or treated in a loved one’s last will. The actions are against the executors who have a fiduciary duty and obligation to defend the will filed for probate notwithstanding their personal opinions about its fairness. There are several grounds for will contests:
Unquestionably the greatest number of will contests involve claims of undue influence relating to the creation of the will. An undue influence claim often arises when the testator makes a will leaving most or all of his or her assets to an individual who may have put undue pressure on the testator when the will was being prepared or beforehand. The testator then excludes those who would typically receive an inheritance because of this questionable influence and pressure. For example, if in a family of loving children, one child is suddenly preferred in the will over the other child or children, questions about undue influence are sure to arise. Where a caregiver or a recently acquired friend suddenly pressures an elderly person to disinherit his or her family in favor of the caregiver as the sole beneficiary of the will, a presumption of undue influence arises.
Every dying person has the right to make provision to distribute their belongings in whatever way they see fit. But, as is the case in other instances where money is involved, sometimes unscrupulous persons attempt to take advantage of a vulnerable person. Such undue influence can result in a person changing a will and altering their dispositive plan.
When substantial changes are made to a will, especially during the last year or two of a decedent’s life, or around the time when a loved one’s health declines due to illness, senility or age, those changes to the will become highly suspect. If you have concerns about recent changes to your loved one’s will and whether or not those changes were the result of undue influence or fraud, our offices will assist you in examining the circumstances, the timing and the substance of the revisions to the estate plan.
Although it is far more rare than it once was, there are still cases which arise involving the question of whether the testator signed his/her will in compliance with the California law. Under California law a typed will must be signed by the testator and two witnesses. If the will is completely in the testator’s own handwriting, then certain special apply. The formalities concerning the execution and witnessing of wills vary from state to state.
When a will that is filed for probate has been revoked by its creator or an argument is made by a contestant believing that the will filed for probate was previously revoked by the testator the Judge will have to determine the validity of the will. Wills or parts of wills may be revoked by the execution of a new will, the preparation of a codicil (amendment) or a subsequent divorce or marriage. Sometimes wills can be revoked by an express act such as tearing the original will up and discarding it.
Following closely upon the claims of undue influence, will contests are often based upon allegations that the testator lacked the mental capacity to make a will in the first place. Testamentary capacity typically requires a demonstration that the testator knew the nature and extent of her/his possessions and property, knew the natural objects of his or her bounty (i.e., the family members and loved ones who would ordinarily receive such property by will) and the testator intended to dispose of the property in the will. The simple fact that an individual may have some psychiatric or mental illness or disease does not mean that he/she automatically does not have the mental capacity to draw a will. Careful review of the law is a must in assessing whether a will may be set aside upon grounds of mental incapacity and frequently expert witnesses and a thorough medical-legal analysis of the mental health of the testator comes into play.
On rare occasions a will contest may be filed alleging that there was fraud or misrepresentation involved regarding the contents of the will being offered for probate. In that case, the person filing the will contest bears the burden of proving that the testator’s will did not correspond with the testator’s intent. These cases are among the most difficult to litigate and the most contentious to process. Fortunately most will contests do not involve fraud or mistake.
If you believe your inheritance has been or is being mishandled or that your loved one’s documented wishes are not being honored, or that your loved one’s wishes were unduly influenced by others causing your loved one to draw a will which was inconsistent with your loved one’s basic values, you have a right to contest the manner in which the estate is being administered as well as the validity of the terms of the will itself.
Occasionally executors may negligently, carelessly or unlawfully perform their duties in administering a will. Beneficiaries may also, out of ignorance of the law, make true, or, on occasion, false accusations against an executor claiming malfeasance or petitioners and respondents in many forms of will contests and probate court matters including those involving claims of undue influence, fraud, mistake, duress and trustee/executor misfeasance and malfeasance. We can advise you as to your rights and your options to redress those rights.
When representing probate litigation clients, whether fiduciaries or beneficiaries, we seek a prompt resolution to disputes. It is in the best interests of our clients for matters to be resolved quickly and as inexpensively as possible. The goal, after all, is for the client to receive the assets rather than the attorneys consuming those assets in attorneys’ fees. Ultimately the client should not win the case only to spend the majority of the winnings on attorney fees and costs!
Our office represents individuals in disputes which arise, from time to time in connection with trusts drawn by other lawyers or put together by individuals seeking to save money by crafting their own trusts. Especially in cases where people use computer programs or store bought forms, the results often create more problems than would have ever occurred had those individuals retained a lawyer to draw the trust documents in the first place.
A trust contest is similar to a will contest and may be based on similar grounds. For a description of the various grounds for a trust contest please see the About Will Contests page on this website as the grounds for a trust contest are quite similar.
From time to time trusts may be “reformed.” When a trust is created by an individual during his or her lifetime or under a will and then upon his or her death it is clear that the trust fails to qualify for favorable tax treatment federal and state laws often permit the reformation (revising) of the trust to be the subject of court proceedings so that the trust can be made to qualify and thereby carry out the intentions of its creator. In certain instances, for example, where a trust does not provide for successor trustees and the initial trustee dies, our offices can obtain court orders appointed trustee to fill the vacancy created by the death of the original and/or successor trustees.
Notwithstanding the best efforts of attorneys, sometimes the complex wishes of a client and the best efforts of the attorney drafting the trust instrument nonetheless create confusion when the instrument has to be enforced on the death of its creator. In those instances, a construction proceeding is filed with the court in which we seek the assistance of the judge in interpreting specific language of the trust bearing in mind the assumption that the trust is valid on its face and simply is unclear. Occasionally trust instruments and wills are unclear, ambiguous or have contrary provisions as to the identity of the beneficiaries, the interests of lifetime beneficiaries versus remainder beneficiaries, the allocation of tax liability and the operation of distribution provisions of the trust. In such cases petitions seeking Court supervision of the trust or for the purposes of construction of the terms of the trust and interpretation of those terms is warranted.
Over the years I have handled many cases where beneficiaries of the trust claimed that the fiduciary/trustee was not properly discharging his or her responsibilities. In those instances, under the California Probate Code our office assists unhappy beneficiaries by filing a petition seeking court supervision of the conduct of the fiduciary and of the administration of the trust.
A. The duty to account
The trustee is usually required to account to the beneficiaries and, if court supervision is ordered then also to the judge for his/her conduct, and to provide periodic accountings of all trust financial transactions for Court approval. Court supervision of the trust assures greater transparency in the trust administration process which clearly is good for beneficiaries who question the conduct of the trustee.
B. Removal of a trustee
When the fiduciary files the accountings, if misconduct on the part of the fiduciary is alleged, my office can assist our clients in seeking the resignation or removal by court order of the trustee and the appointment of a new trustee to right the wrongs of the prior trustee. If necessary, our offices are prepared to question or defend trustees and their accountings. When we represent trustees of trusts, be they under Court supervision or we use our best efforts to review and assist our trustee clients as they prepare accountings to ensure that our clients’ conduct with regard to the trust and its beneficiaries is lawful and proper.
C. Breaches of fiduciary duties
Periodically beneficiaries may take issue with the actions of a fiduciary and assert claims based upon the fiduciary’s breach of duty, self-dealing or negligence with regard to the trust. These claims arise in the administration of the trust or decedents’ estates and in connection with conservatorships and guardianships. Our offices have, in the past, both defended fiduciaries against claims and prosecuted such claims on behalf of wronged beneficiaries.
D. Surcharging the breaching trustee; making the trust whole
In instances where the fiduciary has committed fraud or engaged in some sort of wrongdoing resulting in loss to the estate or trust, our office has pursued the matter in court seeking a surcharge against the fiduciary and the fiduciary’s bond for breach of fiduciary duties and ordering the fiduciary personally to make the estate, trust or the beneficiaries of the estate or trust whole including, in some instances, restoration of attorney fee expenses.
E. Achieving the client’s goal without excessive expense
When representing probate litigation clients, whether fiduciaries or beneficiaries, we seek a prompt resolution to disputes. It is in the best interests of our clients for matters to be resolved quickly and as inexpensively as possible. The goal, after all, is for the client to receive the assets rather than the attorneys consuming those assets in attorneys’ fees. Ultimately the client should not win the case only to spend the majority of the winnings on attorney fees and costs.
When an adult by, virtue of medical condition, injury or disability is no longer able to manage his or her personal affairs (such as being able to live independently, remembering to take medication, giving informed medical consent to treatment, or if he/she cannot eat or bathe without assistance, or if the adult wanders away from home and cannot find the way back to the residence) the Court may appoint a conservator over that individual’s person.
When an adult over age 18 becomes incapacitated and can no longer manage his or her personal needs or financial affairs, or if he or she is, due to a medical or mental condition, unable to provide for himself/herself, family members or other concerned persons may seek court orders to protect and authorize them to assist the incapacitated individual. The first step in that process is the filing of a Petition to Appoint Conservator.
Depending on the mental and physical health of the person for whom conservatorship is sought, the Court may appoint a conservator of the person, a conservator of the estate or a conservator of the person and the estate.
Once appointed, the conservator of the person can help make arrangements for housing, doctor and nursing care, and food and clothing. The conservator can consent on the conservatee’s behalf to medical care and treatment. In some instances, where the Court finds by clear and convincing evidence that the conservatee would benefit from dementia medications, the Court can authorize the conservator to obtain psychotropic medications for the conservatee.
When an adult by virtue of medical condition, injury or disability is unable to provide for their financial needs, manage their financial resources (for example, the adult cannot keep track of their money, loses large amounts of cash, is victimized by strangers, gives away possessions without any logical explanation) or seems unable to resist undue influence, the Court may appoint a conservator over the estate.
Once appointed as conservator of the estate, with court supervision, is required to collect the conservatee’s assets, pay bills, invest the funds and file periodic accountings for court approval. The conservator of the estate will also arrange for tax returns to be prepared and filed on time, will hire people to care for the conservatee’s assets (such as gardeners for a home, a security service for a house, a property manager for rental property).
To assure that the conservatee is being properly cared for and his/her assets are properly handled by the conservator, the Court uses investigators who are required to visit the conservatee and file written reports with the Court. The accountings, filed by the conservator are carefully scrutinized and back up data including original bank statements and original statements from residential facilities (like assisted living) are scrutinized by the probate examiner. A conservator who fails to perform their duties as required by law can be severely punished for failing to do so.
To protect the person being conserved (the conservatee), the Court will often require the conservator to file a bond. A bond is an insurance policy which is there to assure that if the conservator steals from the conservatee, there is a source from which the money can be obtained to return it to the conservatee. The bond company then institutes legal action against the conservator to recover the money paid out. The conservator may also be subject to criminal penalties for misconduct.
Conservators in California are required to have legal counsel represent them in all proceedings. With the very detail intensive nature of conservatorship law, having an attorney who is knowledgeable and experienced in dealing with conservatorships is a must. I have served as counsel for hundreds of conservators and conservatees over the past three and a half decades. In addition, I have been appointed by the Court to represent persons who are proposed conservatees before the Court.
The conservator may be paid hourly fees to serve as conservator.
Clients of this office are counseled at the outset about the kind of records they need to maintain in order to seek fees from the Court for their work as conservator. The fees you will be paid are taxable as income to you. The hourly rate will not be the same as the hourly rate you receive in your own job (such as work you do for a living for which you are paid either hourly or monthly.) Instead the fees are based upon a reasonable rate for the nature and extent of the services you perform. The Court will decide the reasonable value of your services as conservator and we will assist you and recommend a reasonable hourly rate of compensation to you easily in the process.
All fees to which the conservator or the conservator’s attorney may be entitled are subject to Court approval before they can be paid. Once approved, if approved in whole or in part, the fees are paid from the assets of the conservatee.
As people age they often become ripe targets for victimization by unscrupulous people. The Incidents of financial abuse of elders are on the rise. Financial “advisors,” caregivers with hidden agendas and “salespeople” with deals which are appealing to an elderly person can place an elder in a posture of being steered into inappropriate investments. The elder, not wanting to appear foolish, often falls prey to coercion, threats, intimidation or even out of a kind heart, can be suckered by a fast talking cheat.
“Friends,” relatives or children of the victim may pressure and induce the victim to change his or her will, modify his or her trust, give away assets or make large unsound financial gifts. Sometimes a trusted caregiver will attempt to influence the elder to change their estate plans in favor of the caregiver or may take money or assets of the elder under their care.
Our office has assisted families in cases where a parent was wrongfully persuaded by a live in nurse or a new acquaintance to sell real estate to a friend of the unscrupulous individual for a fraction of the actual real estate value. We have also successfully represented numerous conservators who have had to pursue actions against trustees who have misappropriated money they were administering for an elderly person.
In these instances conservatorship of the person and estate are the first step in the proper direction of righting the wrongs visited upon the elder and in some instances double damages may be awarded by the court against the wrongdoer.
There are instances when the need to get a conservator appointed cannot wait the usual 4-6 weeks for a hearing….for example, in cases where the loved one is gravely ill, or the house he/she lives in is about to be foreclosed upon because of a fraudulent deed, or where the loved one is being driven to banks and is suddenly withdrawing all funds. Something needs to be done quickly. In those cases, a temporary conservatorship can usually be arranged in 7 to 10 days. The temporary powers will last until the regular conservatorship hearing can occur. Our office will assist you when a temporary conservatorship is required.
Guardianship is a procedure by which an adult is given court ordered, supervised responsibility and authority to care for a minor. Guardianship may be necessary if a child’s parents die leaving the child orphaned, if the child has been abandoned or if the child is not being adequately provided for by its parents. Guardianship may also be a precondition of the payment of life insurance benefits or litigation settlements to a child upon the death of its parent(s). Finally, guardianship may arise in cases where a child’s parents are unable to take care of their child and call upon the child’s grandparents or other relatives to raise the child until the parents can reassume their parenting roles.
In California the Judge can appoint two different types of guardians: 1) Guardians of the Person; and 2) Guardians of the Estate.
A guardian of the person takes care of the child’s personal needs. That guardian will decide where the child will live, where the child will attend school, and that guardian will be allowed to consent, on the child’s behalf, to all necessary medical care and treatment. The guardian of the estate manages the child’s assets including the child’s bank and investment accounts, collect benefits to which the child is entitled, process and prosecute claims or receives payments as a result of settled or adjudicated lawsuits and/or receives payments on life insurance policies. In cases of parents who die unexpectedly or suddenly, the child’s parents’ Last Will and Testament may specify who the parents nominate to serve as guardian for their child or children.
Once a guardian is appointed, the guardianship will typically last until the earliest of one of the following occurrences:
- The Court decides that the child no longer requires a guardian and by court order terminates the guardianship;
- The child reaches the age of majority which in California is age eighteen;
- The child dies;
- In the case of a guardianship of the estate the child’s assets are fully spent and there is no more money or estate to manage;
- The child’s parents petition the court for termination of the guardianship on the grounds that they are prepared to resume their roles as parents. Such a petition must be approved by the Court before the guardianship will be terminated based upon the best interests of the child.
You are not required to continue to serve as a guardian if you do not wish to do so but you cannot simply resign. Instead you will have to obtain permission from the Court to do so. If the Court feels that the guardianship should continue the Judge will appoint a successor guardian to replace you.
Guardianship is started by hiring our office to prepare the Petition for Appointment of Guardian and related paperwork which we will file for you. Once the paperwork is submitted to the court, in most counties a Court Investigator is appointed by the judge to interview the petitioners (you), the child if he or she is of an appropriate age, and his or her mother and/or father if they are alive and available to be interviewed. The investigator will make recommendations to the Judge in a “Probate Investigator’s Report” which the Court will review before ruling on your petition. A court date will be scheduled and the Judge will decide if your petition should be granted and if so under what terms and conditions. The court hearing on the petition is usually quite brief in the absence of objections. In order to approve your petition the Court must make a legal determination that the minor’s best interests will be served by the appointment of a guardian.
Guardianships are granted because the judge finds that it would be detrimental to the child to not appoint a guardian. Sometimes the Judge finds specifically that it would be detrimental to the child for his or her parents to make guardianship decisions about the child because of the parents’ behavior, lifestyle or legal entanglements. Quite often the biological parents will voluntarily consent to the guardianship by abandoning the child in the custody of grandparents and then the parents will drop out of sight or fail to communicate with the child for extended periods of time. Should there be objections to your petition the Judge will order a hearing and may even appoint an attorney to represent the child’s interests and to make recommendations to the Court on the child’s behalf.
The short answer to this question is no.
After all guardianship does not terminate the biological parents’ rights. It only shifts the responsibility for caring for the child on a day to day basis to the guardian. The biological parents remain legally responsible to support their child. If the child has assets, the judge may authorize the guardian to spend those assets for the health, maintenance, education and support of the minor child. There are some situations where the financial obligation of taking care of the minor child becomes that of the guardian. While the guardian may apply for benefits to which the child is entitled (like MediCal, food stamps and Social Security benefits) in some cases the guardian may put out some of his or her own money to provide for the child, but that is the guardians choice.
There are very strict laws restricting the use of the child’s funds by the guardian of the estate. The funds must be used for the minor’s benefit and depending upon the amounts of money to be used and the purpose to which the money is to be put our office may recommend seeking preapproval of the expenditure by the judge before any large expenses are incurred. We continuously assist our clients in making legal and good choices when it comes to using the minor’s money so as to avoid future problems with the Court. The judge may also impose restrictions on any funds received by the guardian of the estate. Guardians of the estate are required to account to the court in a formalized accounting every two years. Our office will assist you in the preparation of the accounting required by the Court. The Court may also require the guardian of the estate to post a surety bond to assure that the guardian will not steal or misuse the child’s money.
Before you file a petition seeking to be appointed as guardian you should carefully consider whether or not you are prepared for the challenges and responsibilities involved. Since guardianship requires ongoing responsibilities do you have the time and desire to fulfill those responsibilities? Do you have a good relationship with the minor and do you want to serve as the child’s “legal” parent during the balance of the child’s minority or at least during the period of time that the child is under your guardianship? If you don’t have a close relationship with the child or if you do not feel that you will be able to treat the child as a parent would then perhaps you are best off not seeking appointment as guardian.
If you petition to become guardian of the estate you will be required to keep records, to handle banking and all other financial transactions for the child’s benefit. Do you have the ability to do this? Are you willing to work closely with your attorney to do the best you can for the child? There is time involved in keeping records, paying bills and interacting with attorneys and accountants – - do you have the time to spend on these critical matters?
Parenting takes time and energy under the best circumstances. Since guardians step into the role of being surrogate parents to the child they must be sure that they have the time and energy to care for and raise a child. Sometimes guardians already have families and children of their own and taking on responsibility for an additional child requires a substantial commitment. As you think about whether you can serve as a guardian, you may want to think about how your decision may impact on your own family, your health, your employment and whether or not you have the stamina and devotion to the child which is necessary to be a guardian. After all, the child is depending upon you (and so is the judge) to provide the parental guidance which is absent from the child’s life and to take good care of the child which, hopefully, is why you are seeking appointment as guardian in the first place.
Additionally the financial implications of guardianship must not be ignored. Should the child receive income from Social Security or other public welfare assistance programs it still may not be sufficient to support the child at a reasonable level. Should that be the case and should there be no other benefits are you prepared to spend some of your own money to help raise the child? If you are not, then you probably should not be petitioning to be guardian.
Because not all guardianships involve children whose parents are deceased we can’t speak about guardianship without acknowledging that sometimes the child’s parent(s) may nominate you to serve as guardian and then, after you have been appointed, resent the fact that you are the guardian. They can become hostile, antagonistic and/or interfering. Quite often it is the child who is hurt when the parents behave in such a hostile manner and most guardians recognize that they owe it to the child to stand up to the bullying from parents who are unable to parent but are reluctant to let go of their control over the child.
If a child is only staying with you for a few weeks or months (while his or her parents are on vacation or on an extended trip) you do not need a formal guardianship. There are legal papers which can be signed by the parents authorizing you to consent to emergency health services for the child. But if you plan on taking care of the child for a period in excess of two or three months you will probably find it necessary to seek court appointed guardianship. Without such an order you may find it impossible to register the child at school and to obtain medical care on a regular and/or emergency basis.
It is a very rare instance when biological parents of a child must seek court orders appointment them as “guardians of the estate” of their child. The need for such an order often arises when the child is to receive a substantial amount of money usually as the result of a catastrophic injury to the child or to the child’s parents. In those instances insurance companies or other institutions are usually unwilling to turn over assets to the parents of a child that are intended for the child. They fear that the parent will take the money which is suppose to be used for the child and spend it improperly. To prevent this from occurring many insurance companies and institutions which pay out judgments or settlements as a result of lawsuits require that a guardianship of the estate be established so that money to be paid can be paid into a blocked bank account for the child’s benefit.
Experience – Integrity – Competence – Compassion
David Baum graduated from Brandeis University with a Bachelor of Arts degree with high academic honors in 1975. After receiving his law degree from Loyola University School of Law in Los Angeles in June 1978 he was admitted to the Bar of the State of California in November 1978. In addition, Mr. Baum is admitted to practice law before the United States Supreme Court, the Ninth Circuit Court of Appeals and the United States District Courts for Northern, Eastern, Southern and Central California.
Since 1985 Mr. Baum has served, from time to time, as a volunteer Judge Pro Tempore of the Los Angeles Municipal and Superior Courts. In addition, Mr. Baum is regularly appointed by Judges of the Los Angeles Superior Court to represent minors, proposed conservatees and others in guardianship, conservatorship and probate cases.
Mr. Baum’s legal competence has been given the highest rating by the national lawyer rating organization Martindale-Hubbell. He has been accorded the highest rating of “A” for his legal ability and has attained the highest rating of “V” for his faithful adherence to ethical standards, professional reliability and diligence. Mr. Baum is qualified to be included in the Martindale-Hubbell Bar Register of Preeminent Lawyers–an honor bestowed on less than five percent (5%) of all law firms in the United States. With substantial experience handling highly contested probate litigation, Mr. Baum has successfully represented clients in numerous trials, mediations and arbitrations involving probate law, will contests, trust administration, disputes between trustees and beneficiaries, contests in conservatorships and guardianship litigation.
Since his admission to the practice of law more than 29 years ago, Mr. Baum’s law practice continues to be highly respected for the principles upon which it was founded: integrity, personal attention to the needs and objectives of the clients, practical problem solving, clarity of vision and purpose coupled with solid legal advice and unparalleled dedication to accomplishing this clients’ objectives in a professional, accessible and affordable manner.
His published articles include “Practice Administration Under The 1999 Probate Code” presented at a continuing education program sponsored by the Academy of California Adoption Lawyers. His presentations on his treatise, “The Role of the Practice Administrator in Post Mortem Management of a Deceased Lawyers Law Practice and In Cases of Disability of the Lawyer” have been held in such diverse locations as Maui, Oahu and Los Angeles. Most recently Mr. Baum has authored a series of articles on estate planning, the pro’s and con’s of the use of living trusts, and the use of Advance Health Care Directives and Powers of Attorney to avoid conservatorship actions.
He has also published a series of articles in family formation law related areas including: “Adoption With A Heart; Selecting The Right Adoption Attorney”, Counsel, A Law Quarterly, 1990, “Ethical Payment of Birth Mother Expenses”, Counsel, Adoption Law Update, 1991, “Why Birth Mothers Prefer Independent Adoption Over Agency Adoption”, Counsel, Adoption Law Update, 1999. He also served as a contributing author to Loving Journeys Guide to Adoption.
Mr. Baum has been a featured speaker at Continuing Education Programs approved by the State Bar of California, the California Board of Behavior Health Sciences and for RESOLVE of Greater Los Angeles and RESOLVE of Orange County. In addition he has spoken at seminars presented by the National Law Institute Continuing Education Program on a variety of family related subjects.
Mr. Baum served 16 terms as President of the Academy of California Adoption Lawyers and 8 terms as President of the Academy of California Family Formation Lawyers. He is now the Past President of both of those organizations. He is also a Fellow of the American Academy of Adoption Attorneys and has been so for more than a decade. He is a member of the Woodland Hills Estate and Tax Planning Council, the San Fernando Valley Estate and Tax Council, and is a founding Fellow of the American Academy of Assisted Reproduction Technology Attorneys.
A longstanding and active Fellow of those organizations and a Fellow of the American Academy of Adoption Attorneys, Mr. Baum is also a more than 32 year member of the Los Angeles, San Fernando Valley and American Bar Associations. In addition, Mr. Baum has served on the State Bar of California’s Southern California Standing Committee on Adoptions. Starting in 2007 and continuing in the present, Mr. Baum was named as a California Super Lawyer and his profile was featured in the New York Times Magazine and Los Angeles Magazine.
In 2004, Mr. Baum was selected by Congressman Henry Waxman as an “Angel in Adoption” and awarded that honor by the Congressional Coalition on Adoption Institute at a gala in Washington, D.C. making him one of three Angels in Adoption from the State of California. Mr. Baum continues to serve as a continuing education speaker and author on family formation law and practice including guardianships, conservatorships, estate planning and probate related matters.
An active participant in the community, Mr. Baum served for four years as co-chairperson of the Tarzana Regional Medical Center Adoptions Support and Information Group of Los Angeles. For more than a decade he and his wife chaired the Adoption Support and Information Group – - a nonprofit free support group for adoptive parents in Southern California. He has served as a member of the Camp Committee which operates the Wilshire Boulevard Temple Camps in Malibu, California and on the board of directors of the West Valley Symphony Orchestra. For many years Mr. Baum also volunteered as a big brother through the Los Angeles Jewish Big Brothers Organization.