Helpful Hints from the Probate Attorney

Probate, Trust and Estate Planning Tidbits.
by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization

Helpful Hints from the Probate Attorney

The Los Angeles County Bar Association, Probate and Estate Section sponsored a meeting with the Los Angeles County Probate Attorneys and Examiners entitled “Help Us Help You.”

All Room 258 Probate Attorneys and Examiners assigned to Central were present.  Commentary is applicable to Central Court and may be handled differently in the Branch Courts.

ExParte

Make sure pleadings are complete.  Have ALL documents together for presentation.  The Declaration of Notice must be complete and explain the urgency.  Verify it is signed under Penalty of Perjury.

Exigent circumstances/irreparable harm must be shown–put it front and center.  Include all necessary facts and don’t expect to get a chance to speak because you won’t.

LASC Ch. 10 §10.8 discusses the time of Ex Partes, place, pay fees, bring notice, some are drop-offs (including Nunc Pro Tuncs §10.19 to correct clerical errors, only), temporary appointments. 

Calif Rule 7.55 Special Notice Requirements (CRC 3.1200, 3.1206) Civil Rules that apply to Exparte: Form, content, affirmative showings required, prior applications and results.

CRC 3.1204 Notice Requirements and Content.  Did you ascertain whether the opposition will appear.

CRC 2.306 Notice by email

Supplements

Supplements vs. Amendments (LSCR 10.18, 7.53, 7.103, 7.104) There is a difference.  A supplement answers a question which was raised.  An amendment changes something or add/subtracts something and requires a hearing date.

Verify Supplements and serve on all parties

CRC 7.153
CRC 7.104 Supplement must be signed by one of the parties.  The court may accept a Supplement signed by the attorney if the attorney has personal knowledge.

Do not add or change relief sought.  Supplements must be filed with file stamp before going to the Probate Attorney.  Do not attach “stand-alone” documents to other documents or a supplement or it will not be entered as a separate document.

When responding to Probate Notes, do not respond in narrative.  Concisely answer by reference to each separate note by its letter.

If a change alters the Schedules, Summary of Account, or Fees, all parties are entitled to notice and the matter will likely be continued.

Fax Filing

Fax Filing is only accepted from 3rd parties (newspaper filings, Bonding Companies, etc.); not pleadings . . . (nothing from us).

Objections

Verify pleadings.  Make certain who gets service.  Pay the filing fee.  Do not combine Objections with a Petition for Affirmative Relief (file it separately).  Opposition to a Motion must be a separate pleading from Objections.

Email

Email may be your only way to communicate with staff.  They have a crushing caseload.

Email Tips (aka Probate Attorney Complaints):

The court website has “email parameters” to follow:

1.    Put the Case No and Hearing Date on the Reference Line so they see it first.
2.    One email per matter–not a twitter account or stream of consciousness.
3.    Don’t be annoying.
4.    There are now seven times per day (9:30, 11:10. 2:00, 3:10, 4:30, 6:10, and 8:40) that the notes are updated on the web.  They are also updated twice on the weekend.
5.    After the day’s hearing, the notes go off the computer.  A continued matter will not come up for them again until about 10 days before the new hearing.
6.    Do not email the Probate Attorney to get the status on your order.  The clearing attorney may not be the one processing your order.  Contact the Order Clerk in Room 258.
7.    Do not cc: Sandra Riley or Brenda Penny on your emails.
8.    Do not identify yourself as the Attorney for Petitioner.  Identify yourself as the Attorney for Petitioner on the Accounting or...
9.    Do not email that you are filing a supplement.  Their opinion is, “Good, then you got the Notes.”

Examiners

Examiners review Petitions for Temporary or Permanent Conservatorships and Petitions for Probate.  They will not continue status hearings unless it is one to prove-up or file something.  If you have filed the necessary matter then you can let them know the hearing date.
If the notes say “recommend continuance” but no date is given, unless you email to indicate a date to continue to, the court may “deny without prejudice.”  It is just a comment, not a recommendation to the court.  It is not a continuance.  If a date is given, that date will be the continuance date.  If you would like a different date, email in advance of the hearing.

General Comments

If there is going to be a Settlement, put the salient terms in your pleadings and the benefit of the settlement to the estate.

If there are related matters, note them in your pleadings.

CRC 7.702 must be complied with in Conservatorship Fee requests.

If it is the day before the hearing and you have no Probate Notes, check with Room 258 to verify your matter is actually on calendar.  They will be working on the notes.  In the afternoon, if there are still no notes, email them.

Calendar Setting Dates:

Petition for Probate:         Set for 4 weeks
Petition to Confirm Sale:    Set for 4 weeks

All other matters vary; but as of now, for calendar settings:
D-5    3 months
D-9    3.5 months
D-11    3.5 months
                           
Mark your calendar for the upcoming Long Beach Trust, Estate Planning and Probate Brown Bag Luncheon:

Thursday, April 28, 2011, Michael Trainotti, Esq., will be sharing his thoughts on Estate Tax and Related Tax Law Changes for 2011-2012 (and 2010?)

We meet at the Long Beach Superior Court in Dept. G (on the 5th floor).  There is no charge for the meeting.

                ________________________________________________
                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and Estate Planning
                by the California State Bar Board of Legal Specialization

Copyright © 2011 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2011.02.04  Help Us Help You.docx

ESTATE TAX CHANGES 12/17/2010

Probate, Trust and Estate Planning Tidbits.
by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization

ESTATE TAX CHANGES 12/17/2010

A Preview Of Our Next Estate Planning Brown Bag Meeting

Several changes to be aware of under the new tax law signed by the President on December 17, 2010:

1.  We are in a more complicated planning situation than we were in 2009/2010.  Until December 17, 2010, we still were looking forward to a New Year with a $1 million estate tax exemption and a 55% tax rate.  NOW we have postponed that threat to January 1, 2013, so keep that in mind.  It is still possible that your planning clients will be alive and will face a 55% tax with a limited $1 million estate tax exemption.

2.  Okay, for 2010 there was no estate tax, but we have to deal with a modified step-up in basis or carry-over basis, right?  Well, not necessarily.  With the December signing we also received the option for anyone who died in 2010 to subject the estate to the 2011 law ($5 million exemption/35% tax/FULL STEP-UP IN BASIS).  Or, the extremely wealthy could elect, on a death in 2010, to have no estate tax but limited step-up in basis for capital gains.  For 2010, you must file the proper tax forms to allocate the modified step-up/carryover basis to assets. $3 million for spouse and $1.3 million for everyone else; or, you can use the $5 million exemption and take a full step-up in basis.  For anyone with $5 million or less and a 2010 death, it appears to be a given.

3.  For 2011/2012 there is to be a $5 million exemption, full step-up in basis and a top tax rate for estate tax of 35%.  In light of the possibility of a return to $1 million exemption in 2013 there is still a substantial reason to use A/B and A/B/C Trusts or variations with disclaimers. (See #4 below).

4.  “Portability of Exemption” is a concept to learn.  You must file a 706 to get this, but any unused portion of the estate tax exemption by the “first to die” spouse can pass to the surviving spouse.  So, in a typical situation where the estate is passed from the first to die to the survivor, there may be no estate tax, but with a filing, the surviving spouse would receive the decedent’s $5 million exemption added to their own.  But, unless both spouses pass away in 2011/2012, you might have the first spouse’s $5 million, but the survivor might only have $1 million of their own in 2013; or, maybe we won’t even have the first to die exemption after 2012.

5.  The annual gift tax exemption is still $13,000, but the Gift Tax lifetime exemption and GSTT exemption are $5 million for 2011/2012.  This opens huge doors for gifting appreciating assets or to get discounts on valuations at death, ownership interests in assets.  Multi-generational transfers should be considered at this time.
Many clients will think they are in pretty good shape with the new exemption, but the door for greater planning as well as the need to do so, could not be more necessary.


Mark your calendar for the upcoming Long Beach Trust, Estate Planning and Probate Brown Bag Luncheon:

Thursday, April 28, 2011, Michael Trainotti, Esq., will be sharing his thoughts on Estate Tax and Related Tax Law Changes for 2011-2012 (and 2010?)  In addition, Judge Paul will give special recognition to those who have so faithfully given of their time and expertise to volunteer for the Pro Per Guardianship Panel.

We meet at the Long Beach Superior Court in Dept. G (on the 5th floor).  There is no charge for the meeting.

                _________________________________________________
                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and Estate Planning
                by the California State Bar Board of Legal Specialization

Copyright © 2011 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2011.01.05 Tax Law for 2010.docx