by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization
MARK YOUR CALENDAR!
The Long Beach Estate Planning, Trust and Probate Section will be having a Brown Bag Meeting from noon to 1 PM on Thursday, April 22, 2010. Our speaker will be the local guru on Tax Planning, D. Michael Trainotti, Esq. He will be speaking on the Estate Tax Unified Credit–What Now? and Capital Gains–Hang on to all your records (not the vinyl kind)! Does Step-up or Carry-over Basis Apply? We hope to see you on April 22nd.
The Orange County Trusts & Estates Section held a Brown Bag meeting at the Orange County court. The following, provided to me by the highly regarded current Chairperson, Amy E. Haupert, Esq., are the Examiner’s Top 20 Requests/Suggestions from the Orange County Probate Department’s Probate Examiners.
I passed this by our own Probate Attorney, Darci Horton, Esq., who agreed with the list, entirely, with the addition that “all attorney/fiduciary fee requests should be submitted at the same time as the account, and not ‘to be supplemented later.’”
1. DO NOT file your Petition/Accounting if what you are going to file is not complete. Make the appearance, request that amount of time you need, complete your Petition/Accounting and then file. If your Petition/Accounting requires schedules, bank statements, facility statements, etc., file them at the same time that you file your Petition/Accounting. REMEMBER TO CHECK BEFORE FILING. If your Petition/Accounting is going to include attachments, PLEASE make sure that the attachments are attached to your pleading.
2. DO NOT put the cart before the horse. Make sure that all documents required to be on file prior to the filing of your Accounting, such as the I & A, are on file before you file your Accounting/Petition as it is impossible for the examiner to examine same completely without other documents first being on file.
3. DO NOT wait until the notes are created to prepare and give your notice. Notice requirements are statutory so you can give without notes to tell you to give notice.
4. REMEMBER that the PC §1064 allegations are required to be made in all accountings AND REPORTS. It would be helpful to put all of the required allegations together in your pleading.
5. REMEMBER that if there is a mandatory judicial council form, you are required to use same. EXAMPLE: Notice of Hearing should be done on the required judicial form and not on pleading paper.
6. DO NOT give notice only to an attorney who is “attorney for” a party. It is insufficient for attorney to only receive notice or sign Notice and Acknowledgment of Receipt if attorney has not appeared for that party FOR A PETITION THAT IS CURRENTLY BEFORE THE COURT.
7. SAY IT AGAIN. If note requires a supplement to provide several additional items of information and one of the allegations that is being requested has already been made in the original pleading, it is much easier/more efficient/faster to review and update if you just make that additional allegation in your supplement rather than type an additional paragraph to advise the examiner where the allegations was made in the original pleading. REMEMBER: If petitioner is a fiduciary, verification must be by the fiduciary per PC §1023.
8. UPDATE INFORMATION. The names, relationships and CURRENT addresses of interested parties should be set forth in any petition/accounting wherein notice is going to be given to them as addresses often change during administration. If address set forth in original Petition, for example, is different than the address set forth in the Notice of Hearing for the current petition, you will get a deficiency note requesting current address and stating that Notice on file, minus a supplement, is insufficient as address on file vs. address in notice are different.
9. MORE IS BETTER. If there has been a change in circumstances during the accounting period in a Conservatorship or Guardianship that is going to affect substantially the Receipts and Disbursements, tell us in a paragraph or 2 what the change in the circumstances was which resulted in substantially more expenses, reduced income, etc. If an explanation is provided that substantiates/explains the major changes, the examiner will then only have to advise the court of the change in circumstances and put the matter as a “Court to Determine” rather than creating lots of notes questioning lack of receipts, increased disbursements, etc.
10. CORRECT ORIGINAL BANK STATEMENTS. The bank statements required per PC §2620 require that you provide bank statements reflecting the balances in all accounts owned by the conservatee/minor IMMEDIATELY PRECEDING THE DATE THE CONSERVATOR OR GUARDIAN WAS APPOINTED for the First account AND STATEMENTS SHOWING THE ACCOUNT BALANCE AS OF THE CLOSING DATE OF THE FIRST ACCOUNT. Make sure that the statements that you provide include the applicable dates. Statement for balance immediately preceding date of appointment should include period prior to appointment and include date of appointment (the date the court approved your petition for appointment). Statement for balance at the end of accounting period MUST cover the end date of your accounting period. For Certificates of Deposit, statements are not always issued. A letter from the bank would be sufficient.
11. ORIGINAL FACILITY STATEMENTS. If Conservatee or Ward are in a residential care facility or long-term care facility the ORIGINAL bill statements for each facility for the entire accounting period are required to be filed. If the Ward or Conservatee was not in a facility for the entire accounting period, make that clear in your accounting being sure to point out to the examiner why statements for the entire accounting period are not provided. This will avoid a note stating that not all facility statements were provided.
12. ACCOUNTING SHOULD BALANCE. Your summary of Account should balance and the totals reported in the Summary of Account and on the accompanying schedules should match. If you accounting does not balance, report same. Advise the court that the accounting doesn’t balance, how much the accounting is off by, what efforts you have made to balance same and why you believe the accounting does not balance. Again, reporting same up front avoids receiving examiner notes stating that accounting does not balance and amended accounting required. Court will determined if accounting will be accepted as filed based on the information provided, etc., or if an amended accounting is necessary.
13. PROPER EMAIL USAGE/CONTINUANCES. You cannot clear notes by responding to examiner’s notes via email when a supplement is required. Improper to submit your “proposed” supplement for pre-review prior to filing via email. IT WILL NOT be reviewed. You will receive an email that advises you that upon timely filing of the original supplement, same will be reviewed by examiner and notes updated accordingly.
If you do not find posted notes for your matter on the public website at least 2 weeks prior to your hearing date, you can send an email and advise. Same will be looked into and a response will be forwarded to you regarding the status of your notes. Notes should be there. Occasionally, there was an error in the inputting of the hearing date and your email brings it to the attention of the court for correction and the review of your matter.
Only the moving party/attorney for the moving party can request a continuance. If there are other attorneys that have appeared for objectors, etc., they must also acknowledge the request for continuance and agree to same by sending an email stating same. Court will give next available date IF THE REQUEST IS FOR THE FIRST CONTINUANCE AND THE CONTINUANCE IS ALLOWED.
Only 1 continuance will be allowed via email request. Court will require appearances for all other requested continuances.
14. TRANSFERS ARE NOT DISBURSEMENTS. Transfers between accounts during accounting period should not be reported in Receipts and Disbursements schedules. An informational schedule to report change in form of assets would be more appropriate.
15. DISPOSITION OF ASSETS REQUIRED TO BE REPORTED EVEN IN WAIVERS OF ACCOUNT. If the assets have changed from what was inventoried, the disposition of the assets must be reported, even in Petitions for Final Distribution on Waivers of Account. Accounting and/or Report must report whether a gain or loss resulted from said sale. REMEMBER: A loss on sale must be included in the fee base, a schedule must set forth the receipts, whether filing a Final Accounting or a Petition for Final Distribution on Waiver of Account.
16. FINANCIAL DOCUMENTS FILED BY PPC’S. PC§2620 requires that Private Professional Conservators file ALL original account statements for the entire period covered in the accounting. This court has a procedure that includes a Financial Documents Cover Sheet for the presentation of the original documents for review and then returned to the attorney after scanning. ONLY the original bank statements should be included in the binder presented to the court. DO NOT include cancelled checks, original receipts to itemize “petty cash” expenditures, etc. Attorney can advise the court that said receipts, cancelled checks, etc. are available for review by the court if required.
17. DHS AND VICTIM COMPENSATION NOTICES. If Notice is required, give it. If Notice is not required, make the appropriate allegations. Remember that you must advise the court re DHS for the decedent and the predeceased spouse. If any heir/devisee IS currently or WAS confined in a prison or facility, this court will require notice to Victim Compensation and Government Claims Board.
18. FRANCHISE TAX BOARD NOTICE. Per PC§9202 personal representative is required to give notice to the Franchise Tax Board NOT LATER THAN 90 DAYS AFTER LETTERS ARE FIRST ISSUED. Mere allegation that notice was sent is insufficient. Date of mailing should be alleged and copy of Notice should be provided. There is no form for notice, so a letter giving notice to FTB would be sufficient. If notice is given after Petition for Final Distribution is filed, a letter from the FTB stating that no claim will be filed in required. If Notice was given more than 90 days after Letters were issued but notice was given more than 3 months prior to the filing of the Petition for Final Distribution and Notice with proof of service is on file reflecting the same, Notice will be deemed sufficient. To expedite processing for filing claims, notice may be faxed to FTB Decedent Team (916) 845-0479. FTB has indicated that if notice given requests response from FTB, they will send a letter.
19. TWO-SIDED DOCUMENTS. Per CRC§2.134 if a form is longer than one page, the form may be printed on sheets printed only on one side even if the original has 2 sides to a sheet. You may wish to file your Notices of Hearing and other documents that are 2-sided as a 2 page document to avoid the possibility of the second side inadvertently not being scanned.
20. NOTICES OF HEARING AND COPY OF PETITION. DO NOT attach a copy of the Petition to the original Notice of Hearing that is being filed with the court. There is a box that can be checked to reflect that a copy of the Petition was sent to all parties with the Notice of Hearing.
John T. Anderson, Section Chair
Certified Specialist in Probate, Trust and Estate Planning
By the California State Bar Board of Legal Specialization