E-filing is now required by many of the courts in California; e-filing is required by the court in Los Angeles.  My probate clients are currently able to sign almost all of their documents electronically.  One of the most prominent exceptions to this new rule is that Letters Testamentary or Letters of Administration must have an original signature.  The California Rules of Court for 2018 lay out when e-signatures are accepted.

Rule 2.257. Requirements for signatures on documents

(a) Documents signed under penalty of perjury

Naming the person in your living trust and will to carry out your wishes can be challenging sometimes.  What follows are California guidelines to help make choices so that if the people you have in mind can perform each of these duties and responsibilities then you can be confident you’ve made the right decision.  As your fiduciary, the trustee and executor must be able to comply with these various duties when exercising their powers:

  1. Duty of Loyalty to the Trust and Beneficiaries
  2. Duty of Confidentiality regarding Trust Affairs

Some probate cases that I work on in the Los Angeles Superior Court are best resolved by a professional mediator than by a sitting judge.  Often the mediator is in fact a former sitting judge who has retired from the bench in order to help people address their differences and come to a resolution.  (Mediation is not the same as arbitration; one difference between California arbitration and mediation is that with an arbitration, there is often an agreement among the parties at the outset that the outcome is binding whereas with mediation, the outcome is not necessarily binding.)

One case I worked on was ripe for mediation.  I was retained by one of the decedent’s children who was born in the 1970s to a woman the decedent had not married.  One of the women the decedent had married and with whom he had two sons filed for divorce in the early 1960s. As part of the divorce, the wife obtained a court-ordered judgment for child support for both sons.  The decedent had never appeared in court during the divorce proceedings and left it entirely up to the wife to finish it.  He then disappeared from the wife’s and his sons’ lives.  The wife, however, never finished the divorce and never obtained a court-ordered judgment decree finalizing her divorce.

About 50 years later, the decedent met another woman and they married each other.  Shortly after their marriage, he died without a will.  At the time of his marriage, he owned his home in Los Angeles free-and-clear.  They did not have any children between them.

Contingency fee arrangements in probate are rare for me.  Typically, attorney’s fees are paid in one of two ways: either statutory fees or extraordinary fees.  Contingency fee arrangements may come up when statutory fees or extraordinary fees may not apply to a situation.

Recently, a new client told me that he was the heir of a California estate of a person who died without a will (intestate).  As my new client was about to receive his distribution from the probate estate, another person made a claim stating that he instead was the sole heir.  That claimant filed an objection to the proposed distribution arguing that he had a higher priority to claim the entire estate under the rules of intestate succession than my client had.  He argued that since my client was adopted when he was a child, he was no longer related to the decedent and therefore lost his priority as an heir.  My client argued that although he was adopted, his relationship with the decedent was not severed because he was the decedent’s sibling and the rules of adoption sever a relationship only as between a parent and a child.

In a situation like this where the California probate attorney is not handling the actual probate and is instead representing an heir, beneficiary or creditor, a contingency fee arrangement may work.

Martindale-Hubbell Peer Review Ratings recently came out with it’s rating of me. The Ratings are an objective indicator of a lawyer’s high ethical standards and professional ability. Attorneys receive a Peer Review Ratings based on evaluations by other members of the bar and the judiciary in the United States. I have been honored with an “AV Preeminent” rating which is a significant rating accomplishment- a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence. My piers gave me a rating of 5 out of 5 in all possible areas analyzed: Legal Knowledge, Analytical Capabilities, Judgment, Communication Ability, Legal Experience. I’m pleased and honored.

On November 9, 2012 the Joint Committee on Taxation released a report which, among other issues, examines the potential impact to the Treasury from potential changes to the estate tax, including the Obama administration’s proposals. Importantly, if the 2012 estate tax regime is extended into 2013, the Joint Committee estimates that there will be 3,600 taxable estates. Under the Obama administration’s proposed 45-percent estate tax and $3.5-million exemption, the number of taxable estates in 2013 is estimated to be 7,200. If the estate tax regime in 2013 reverts back to the 2002 regime (as it is currently scheduled to do), the number of taxable estates is estimated to be 55,200.

2012 provides a unique opportunity for making gifts using the federal estate, gift and generation skipping transfer (“GST”) tax exemption of $5,120,000 (reduced by any prior use of such exemption).

Unless Congress takes action, the exemption decreases to $1 Million on January 1, 2013 and there is a possibility that those who miss the opportunity will have lost the ability to make significant tax free gifts.

· Based upon the existing estate and gift tax rate of 35%, the additional taxes from not taking advantage of the gift exemption of $5.12 Million that could expire on January 1, 2013 as compared to the $1 Million gift tax exemption that is scheduled to be effective on January 1, 2013 could be over $1.4 Million.

A conservatorship in California is a court case where a judge appoints a responsible person or organization (called the “conservator”) to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances.

Types of Conservatorships

There are various types of conservatorships depending on the needs of the conservatee:

Are you married?

Estates of married individuals dying after 2010 must file an estate tax return to pass along their unused estate & gift tax exclusion amount to their surviving spouse.

Available for the first time this year, the new portability election allows estates of married taxpayers to pass along the unused part of their exclusion amount, normally $5 million in 2011, to their surviving spouse. Enacted in December, 2010, this provision eliminates the need for spouses to retitle property and create trusts solely to take full advantage of each spouse’s exclusion amount.

Last month I blogged about “Intentional Interference With Expected Inheritance“.

A new article written by two Harvard Law School professors is about to come out entitled “Torts and Estates: Remedying Wrongful Interference with Inheritance” which takes the opposite view.

Here is the abstract of their paper which is forthcoming in the Stanford Law Review: