Transcription
So, selling real estate is fun when everything goes well. The question is, what happens when there's a problem or mistake? Today, we have the chance to talk to a probate attorney who specializes in litigation and unfortunately or fortunately sees a lot of things that can go wrong. I've been involved with her with several of those. I think that's really her business is when things go wrong, how do we fix them. Mina Cirkin, thank you for coming back on Probate Weekly.
Thank you for having me again. So, one of the uh area, you know, we talked pre-call kind of highlighted we've worked together on a number of cases. I've had the privilege of working with you. I've had the challenge of uh being the agent on the other side. I've watched you in court as well. I've seen you in the hallways and and know that you're respected member of the probate bar. So, you really are one of the LA County's most active or involved um litigators involved in when there's challenges in these when things go wrong. So, let's talk about before we list the property, kind of the list of some of the problems to avoid and be aware of. And I know you mentioned one of them is about who has the authority and how that's going to determine what the next steps are. Talk a little bit about maybe some of the mistakes you've seen or challenges that uh one should avoid uh regarding who has the authority and how to make sure you have the right party involved.
So, in in estates and trusts, there's different people with authority. So in an estate you either have an executive or administrator who has to have certain prerequisites before they get authority to sell and in a trust you have a different set of procedures that you have to be followed by the person with authority. Sometimes litigation comes about in determining who has the authority. Uh sometimes in an estate in a probate estate there's a challenge to a will there or if there is no will there's a challenge to the person who has filed to become the administrator of the estate. So some of those things can uh can end up confusing people can confuse heirs can confuse realtors. So, if you have an estate um and you're a realtor, you want to make sure that you have uh a document that a court document that shows that the person that you're dealing with that you want to sign up as a client has the authority. Because just because I say I'm the executive of the will, it doesn't mean I've been appointed yet. It means that my name's on a will, >> right? But it doesn't mean that the court's given me the okay to go ahead. But being appointed is a a a primary step in an estate for an executive administrator to act before you get to the procedural things that the person has to do. So find out who has the authority. If you think the case is going to have a challenge regarding the authority of the person to sell, there's a number of things that realtors can do. Can go try to figure out, you know, who all the heirs are and try to get some kind of written consent uh ahead of time. uh if you think you can't get that you know propose some other ideas maybe a a professional fiduciary to come in just for the purpose of the sale that can sometimes avoid all the you know issues that the other people are dealing with which could take a year or two to resolve um if you have a will contest that that isn't going to be resolved tomorrow. In fact, the first case, excuse me, that I I worked with you on was such a case where there was a um a man who was filing for probate that you were representing, I think he was the brother or cousin or uncle of the deedant. And then there was another there's a woman who was who was purporting to be his deedant's wife. Turns out he was a girlfriend. And um and so they were both making cases with the court as to who should be in authority. And in this particular case, I was able to get you and the other attorney agree to allow me to get the property sold, the money put in escrow, uh, or I should say a blocked account. And then both parties can argue over the money instead of arguing over the property, you know, while the property wasn't going to be vacant and potentially more expenses, mortgage payments, taxes, and things like that. So that's a common one that uh you know with the right attorney and I think you have attorneys who are looking to both serve the customer uh as a chance to step in but you need to work both sides and treat both of them as your client not just one and that's always touchy.
And again it's hard when there's emotions involved you know when you have someone who believes that you know that the deedent would have left it to them or >> right >> uh family members who said there's no way this guy would have left it to this person. it's it it becomes a challenge. So yes, there there are things that can be done uh in even in an estate setting that took five years to resolve. Um sometimes a special administrator could be appointed, sometimes a professional fiduciary could be appointed. It it it varies uh from case to case, but a realtor has a very nice role of staying kind of neutral and being able to say, okay, do both parties want to get to this outcome and can I at least get you to halfway in between, you know, what everybody wants. So that that's a so that issue of who has authority um varies. In a trust setting, there's often challenges to trust and amendments. There's sometimes five or six amendments and you have to figure out, you know, who the actual trustee is and is there going to be another challenge and determining the identity of the trustee. So, just kind of give you a cautionary, you know, word about making sure that whoever you're dealing with is actually the person um that that has authority in even a trust setting. Notice of uh proposed action is a very common thing that happens both in an estate setting if there's independent powers uh and in a trust setting. They have different timelines. In a trust setting, you have a 45day timeline. and you're in a a state setting, you have a 15-day timeline. There there's there's similarity between the two of them, but there's a little bit of a larger uh time lag in trusts, but less headache sometimes in a trust setting.
And just clarify for those who don't know when you say a 15 or 45day notice of proposed action or NOPA, it's only it only goes that long if somebody doesn't respond and then the default is they approved it. But you can uh circulate the notice and get their approval before and take less time as long as everybody's on board and approves or nobody's objecting.
As long as you have somebody with authority to send that notice. That's true.
Yeah. Yeah.
That is very true. Um, so another thing that actually comes up that realtors uh have to be cautious about and they have to see if they can help in a situation is you have to answer this question who is impacted by the sale. If you cannot answer that question um the property is not ready for a sale. The who is impacted uh by the sale means that if there is an occupant of this property, you have to know who it is. You have to know what their rights are. You have to know how long it would take to get them out, if any. You have to find out if the heirs and the trustee or executive have agreed to keep this person in place. Um, but most importantly you have to find out if the person will allow you to uh market the property, show the property, >> list it, uh will not interfere with the sale in regular sales process and and sometimes we have heirs who are very angry because they've lived there for a long time, didn't pay rent, and they're angry. They don't want to leave. So, you have to ask yourself, how do I uh find a way for this person to have housing? Because ultimately, if you have somebody who's fearful of uh losing the place they live in, they're not going to help you.
>> Right? >> So, >> the opposite, the opposite. They'll make appointments and then purposely not show up or purposely not open the door or chase away inspectors, chase away uh appraisers. I mean, they they'll actually do their best to sabotage the deal. So maybe creating that rapport with that person in advance and trying to figure out what they want. Sometimes all they want is a place to live, right? >> Sometimes all they want is some money to go somewhere. Um, sometimes they need someone to help them otherwise. There's just a lot of different uh categories of this type of person. And sometimes the person who's living in the house is not competent. You know, five or six years ago, so much of my business was arranging for evictions and or cash for keys. And I got good at it, had good vendors, and we're effective. The last two years, I would say almost every case, it's been impossible to evict the the party without years of of litigation. And uh more common now, we're selling the property. I've done it a couple times with the T with the with the for a property that's going to be a fix and flip, the investor taking it and taking over that responsibility and they've been willing to at a less premium than I would think would be uh than would cost the estate. >> Do you see that? Are you are you seeing cases where.
Yes, there are sometimes there are sometimes those cases where the investor will take the property subject to the the rights of whoever the occupants are, whatever those are.
Good luck with that. Good luck with that. I had one recently where we sold it was a hot market in Tzana or in Cino I think a year ago we sold it and a year later the investor called me can you help me get out and I said no that's why we sold it we couldn't get them out it was just a nightmare. Yeah, it's a it's a it's a challenge, but you know, if you can answer the the top five questions regarding the feelings of that person who's the occupant, >> you can find a way. You can find a way easier than you would once it's listed, >> right? >> Because once it's listed and things are happening, >> that person's going to become reluctant. But before it's listed, there's more that you can do. uh that otherwise uh meets the eye.
>> Yes. What one of the things also you brought up as a as a common problem that you've seen is people will start uh with either the probate filing set of errors or you know with expectation who the heirs are and then later discover more errors. They passed, you know, without a will, but out of the blue comes, oh, there was an ex-wife and they had kids or there was another sibling that the other siblings didn't know about for whatever reasons. Talk a little bit about those problems and what can be done perhaps to minimize the damage.
Yeah. So, I I mean, you really have to know who the heirs are, but it's a challenge to find out who the heirs are. Sometimes people die intestate. And let's just say that um Mrs. X died in 2021. She thought her only heirs were her siblings, but she had a spouse who died within 15 years of her death and the heirs of that spouse are actually partirs of this estate. So sometimes it becomes a challenge because you know certain people have expectations you know the siblings of the deedent expected to get all of it and then there's now 50% of it is allocated to another family member who they don't even know about or they didn't even know about till halfway in the case. Um, and that becomes a source of sometimes. So you have to ask yourself these questions. Sometimes you think you have three heirs and you end up with six.
But >> I had one of those where they discovered the husband had a a child out of wedlock but was you know entitled by law to I think half you know his the she was the only child uh out of wedlock. So half went to the spouse and and her kids which is one and the other half went to the stepchild that you can imagine you know the daughter hated this child that was out of wedlock. You can only imagine.
And then you can add in this case it was a racial element just to add to the whole flames of this of this fire. And so that's a case where >> it's sad and it and our job is is to be non-judgmental and and to and to support our customer uh our client. that it it is is certainly worth doing the digging the work and finding out what you can about this as quick as you can and not ignoring it because if there's a story about some prior child, that story is often there for a reason. We better dig into it and try to find out what we can about it.
Years ago, uh my family members used to buy cars from a car broker. And this car broker had an amazing methodology of selling cars. She at the time, this was we're talking about the '90s, she had a rolodex and an index card that was attached for each person on the Rolodex. And on the index card, which were this big, she had every piece of data about this person's family members >> on this index card. So when she called you, she would know your child is now 19 years old, okay? And may need a car to go to college, you know, and and her timing was almost impeccable. So the same would hold true with realtors, you know, the more you know about the family members, the better you can serve them >> because you could predict >> uh some of the needs of the people. But So, if you if you guys can revert back to uh the index card system and make sure you have one for every case and know everything about every person that's in that case.
>> You know what's funny about that is you're right, in the old days, realtors had similar iness cards or we had address books like I had a contact book, address book before there was computers. And what's funny about it is with all the technology, I think realtors keep less information on the customers than they used to. It's easier, but I just don't think we use the tools we have as effectively as in the old days. You'd have to you'd write it in and you keep it over five, 10 years. You you'd look at it and realize what you're missing. So, that's an interesting point.
I remember in the 90s everybody used to walk around with these phofaxes or uh notebooks, three ring binders that had all this information in it. I think there was actually something to that >> because it visually reminds you of what pieces of information to gather and put in it versus where you enter something onto your phone.
Well, it goes in your phone and just like the phone numbers that left your brain.
Y >> those other that those pieces of information also go away.
>> Yeah. >> So, yeah, there there's just different methods that that were used. Maybe maybe I'm just oldfashioned, but I think some of that still useful.
Yeah. No, I think it's very important. I think you have to have it all one place, but you have to make the effort to do it. Even though the technology makes it easier, you still got to make the effort to take notes and and to put it in one central place.
Um, talk about a little bit about pre-sale requirements. There's differences obviously for a probate, there's for a trust. Talk about first trust. What are the pre-sale requirements typically? Um, when do you need um uh a notice to list a property? I know that often times people uh think that's required in probate. It's not. It is on conservatorships I believe. Talk a bit about trust what the procedures are in order to list a property.
So assuming you have a general revocable trust and you have a successor trustee that has come in. The very first thing that that we need to determine is you know get an appraisal. You have to have an appraisal so that your trustee knows what the baseline is going to look like. And if a beneficiary says, why did you list it for X? Then you pull out your appraisal and you say, well, this is the data I saw and that's why I listed it for this much or this was the condition of the property, right?
And have pictures. Having having pictures tells a visual story as well, right?
So maybe the appraisal comes out at a million dollars, but that that there's deferred maintenance that uh there's a cleanup requirement. So having appraisals and pictures um really would focus your trustee before they give a notice of proposed action. So notice of proposed action should come after the appraisal's been done because that shows that your trustee did some due diligence before they list it and before you know the notice goes out. So the notice goes out, somebody may come and say, you know, no, during that 45day period, somebody will say, no, you know, I think you're underelling it. You're you're not being mindful of, you know, what sold down the street.
>> Right? >> So these are things that that and then the notice of proposed action is sent out. The reason why you need to know the beneficiaries of your trust is because you need to be able to give this notice to proper people. Sometimes you have to give that notice to charities, a lot of charities. Sometimes you have to give that notice to the attorney general's office if that represents some charities. So, GA gathering that list of beneficiaries is one of the primary things that we do and then uh appraisals and then the notice of proposed action. So, those are the first few things that we do uh that kind of at least open up the door to a proper sale. I also see that attorneys often will um instruct me when they list a trust property in particular to create a a marketing period upfront. meaning um while we can say strategically we're going to just not accept offers before two weeks from today that um uh for whatever reason we're you know vacationing family um that that with attorneys on trust to me I find often that they'll say we want to put that in the MLS and we want to make sure that we've told everybody that um um in order to I imagine it's established that we were on the market for a while and we we had time to consider all all options. Is that something that you recommend as a best practice or.
Uh it it it varies case by case you know it you know in different situations sometimes sometimes I ask the realators if they would just present all the offers at the same time. So, you know that that even though you can make an offer that it's not going to be presented >> for two weeks for whatever reason.
And and that's because we want to have the trustee look at everything all at the same time. At least be able to to say, "Okay, I have maybe four offers and you know, this one's better than the other." Um, that that'll give us the ability to have more information essentially. I think if >> if a an attorney asks you for that pre-arketing period, it's because they need more information to be gathered during that period for their client. Um, sometimes clients are out of state. We can't get to them. You know, it it's it's hard to do that. So, yeah. Um,
>> One of the one of the challenges I always question myself and even working with you and I've worked now with you for I want to say about six years and we've done a number of escros and been on both sides. Ive I've been uh where my clients being lit as being uh sued by you or but uh I feel very comfortable in our relation. feel like like we communicate well and even still I'm always hesitant do I there's a line between sending you too much information and sending you too little but both to my maybe to the client the administrator executive and the attorney one of the fears you always have is well you know the the client's going to say well everything you send my attorney they review and bill and my bills going up and please stop you know I've had that complaint not with you with the I've had that complaint from from customers or that feedback for me do I do try to create a spreadsheet of all offers and both outline key points and link to the offer in case the customer wants to read it. Tell me about, you know, you in particular. What do you not want me to update you on that you do get sometimes from real estate agents? What is it that you obviously should get every time that maybe real estate agents forget to include you in the loop on where and where do you draw that line?
My preference is that the realators present all the offers at the same time, preferably on a spreadsheet that we can visually see and be able to then we can communicate what the potential problems are with our client with respect to any particular offer. I don't necessarily need to know for example um that uh there was a there was a problem with one of the tenants unless that problem is not resolvable. Sometimes things happen and the problem resolves itself. Um, but I don't necessarily need to know about every detail of the problems until there's something that that just the the client and the realtor cannot resolve. That will save a lot of money for the trust in the state as well. Um, sometimes things are beyond the scope of what's considered legal. Okay. Um, I don't necessarily need to know um if today the occupant was not available for the showing. If that doesn't happen again, it's a problem that's resolvable. But if it's something that's consistently happening where you know you've attempted to show the property five times >> and it just hasn't happened because of the occupant, then it becomes a legal issue as opposed to a real estate issue.
So yeah, I I think I'm I'm I I think >> um >> we appreciate not being in the loop for a lot of the nitty-gritty of the real estate cases. um we get sometimes two to 300 emails a day and it gets overwhelming and so if we can narrow down the field of things to the legal items that would be my preference but >> it is interesting and and it's hard as a real estate agent to imagine what's going to be the legal item or not. Um, you know, we get offers that are good for three days. Uh now if we had said we're going to hold all offers to a certain date and the offers have the expiration of that certain date then we can present them all at once. And that's where I think having those dates in mind makes sense. Sometimes you get an offer and they don't comply with that.
Uh and I'll go back and say look if you rewrite it and they'll say no I want you to it does expire in three days.
>> Um >> in which case you have to present it when you have to present it.
>> Then you have to present it at the time. So that's one of those things. So, another area that, you know, you and I over the years I' I've, you know, called you with matters I thought would be appropriate and turns out not. And I think that as a real estate agent, uh, and I'm pretty involved in this, I still don't have a very clear sense of what is a litigation case an attorney is going to take versus one that's not. Um, I think I've come to understand that, um, you know, anybody's litigating who really thinks they've been wronged, uh, to get to to really, uh, take a matter to court, they either have to have a million dollars at at at at issue uh, for contingency or have at least $100,000 in cash that they can put down to get the process started and to a certain point. So, first are those guidelines, that's kind of what I would say to a customer, not that all attorneys are the same, and of course, this is California versus other areas. One, are those guidelines reasonable or would you amend them? And two, a bit about when somebody should call an attorney like you to discuss a problem versus what are more trivial things that you'd rather not not to call or what things should they call you right away on?
That's hard to say because the facts of each case are so different. But yes, generally there has to be the amount and controversy has to be large enough to be able to even entertain the case for a contingency case >> because if it's not um the client's not going to be happy. I'm not going to be happy and ultimately you may resolve the case but not not in a way that would have been you know appropriate. So I think uh everybody who enters a litigation case as a customer they they need to think about you know what am I going to be spending in this case and what am I going to get out of it. A lot of times it's unknown. 90% of the times it's unknown. But there are times where you know your siblings, you know, your sibling has had a history of having filed multiple lawsuits that they live on proceeds of lawsuits. You know, your case is not going to get resolved today, tomorrow, or six months from now. Um, so having that piece of information about the opposing side is is important in you determining whether or not you want to go forward and litigate because you could end up spending instead of that $100,000 that you thought you were going to spend, you may end up spending $300,000 because the person will not move, >> right? >> Um, so that's a general good guideline, but it varies case by case. There are also different categories of lawyers. Younger lawyers tend to take the cases with less retainers. Uh older lawyers with larger retainers. Of course, everybody is paid for their experience. Um, but um keep that in mind. There's, you know, just because there's a case that's smaller doesn't mean that that person can't find a lawyer. It just may be that they might find somebody who's within the first five years of their practice, not 35 years. But there's room for all sorts of lawyers and all sorts of clients.
And I also know that you're very well connected to other attorneys. And so if it's a case that's not appropriate for you, you're going to be able to in in some cases, in many cases, find somebody else who might, you know, point them a direction they might want to go uh to get something done. So, I know, you know, back uh pre-COVID uh back when I first met you, I was working with you and would see you in court regularly. Um, you know, you were an active member of the probate bar and you knew uh if you didn't know them, they weren't worth knowing. Uh you knew everybody who seemed to be active in the in the probate uh courtrooms. Um, and that's kind of way I think that you I'm sure you go to court occasionally. Uh there's certain things that require it maybe, but in general, I'm sure you don't go, you know, even onetenth of the time that you used to. I think that works to your advantage as an attorney in that there's a premium now on your experience that other younger attorneys just can't get what what you got when you started. Um, you know, how do you see kind of the change in the court procedures being more online uh and maybe a little more efficient at the court? Seems like how does it affect your business and how you see it affecting the next generation of attorneys?
Uh, the court's become a little bit more efficient over the years. there was a a a gap in time, you know, prior to three years where things were just not flowing well. But I think that they've streamlined it better now. So orders are flowing a little bit easier. Um, for us, that's what really counts is getting the orders on time.
>> Uh, because can't close escrow if you don't have an order, >> right, >> in probate. Um, and you really, you know, your your clients are waiting waiting waiting for something to occur. Um, but it's happening. I mean, I I think that it's streamlined. I think it's getting better for the younger generation of lawyers. Uh, I think the learn learning curve um is shorter in some ways now than it was back then.
How so?
I I think that there's a lot more tools available now for younger lawyers. uh than there were back when we were you know going through the motions of this but I think um there's some experience also adds something where you're able to pivot you know when a problem comes up in the courtroom you're able to say you know maybe you can give me an opportunity to file this with the order maybe someone who hasn't had that done a number of times won't think that that's a a solvable problem. But you know it's it's both you know people who are coming into the practice are coming in with a lot of digital experience >> but not necessarily the human >> experience of it. So there's a give and take. You know I could learn something or two from somebody who's more digitally experienced and they can learn something from someone who's got more lifetime experience. But I think there's room for each.
I had a case with you um in fact it was the first one we did where it was a court confirmed sale and the rules are are the rules are can't sell the property for less than 90% of the inventory appraisal report. In this case we sought to do that had inspection discovered massive mold. We're facing foreclosure and you were able to get the court to agree to sell the property at a little bit less than 90%. In so many other cases I've seen that just a hard no a hard no. a hard no, but I saw not just that you had the idea to present it to the court, but the way you presented it to a court was a way they could accept it. And I don't think as a new attorney, if you just going online and you watch your own cases, you would see that. But if you're a young attorney sitting in the courtroom with the next case and would have seen that, you would have learned, oh, there is some other options for some other things that are there. I think that's the thing that's missing for the new attorneys or and I think more importantly where you stand out that experience just can't be replicated that you got for the first part of the first 30 years of your career and I think that that's a real leverage for your you know the current period of your business.
Sometimes some sometimes >> yeah I mean I there's plus and minuses of of of being older and more experienced obviously but um I I I do think that that's you I know in real estate too same thing they don't learn from other agents not being in the office. And so I see them tripping over some basic things that the old days I'd walk down to the next cubicle and say, "Hey, I got this new listing. I have a question. You know what to do." There's no guy in the next cubicle anymore in most of these offices. That's a challenge.
Same with us as well. So, just to wrap up, since the since the largest number of people watch this uh um podcast are real estate agents, you know, what are one or two things that you see most routine mistakes that real estate agents should avoid or what are one or two of the best practices that you see the good ones make that they should copy?
Jumping the gun is is a common mistake. Uh not getting an appraisal is a very common mistake. So, get the appraisal first. get the index card that tells you who these heirs and beneficiaries are. I think that that would open up a whole new door of things for uh realators that that is easily missed. I can put somebody's name in my phone, but it goes in there. It doesn't come out. But if it's in a notebook, >> or on an index card that I flip through daily, >> right? >> Okay. it it's a trigger to your head that you know maybe I need to pick up the phone and call the neighbor. The neighbor might know the occupant by the way. >> Right. Right. >> And maybe that creates some kind of rapport for you with the occupant of the property. So I I I think there's there's a lot to be said about personal service still.
>> Yes. Um, and we forget that our phones are only limited by whether or not you actually use them.
Well, I think it's a common theme in in in our talk here today and working with you in general, which is that all the technology and all the systems are great, but if you have a personal relationship, you can avoid problems and or resolve things that can't be done via Google or Facebook. And I think that's you know why the the best attorneys can't be replaced with AI. They can be enhanced and they can be leveraged but they can't be replaced because that experience the the AI is not going to court not doing the things you did over the last 3 five years. It's just getting the input that it gets and same with realtors.
So >> I I am sure things will change as AI changes. Uh things will change in in the next four or five years >> as things get better. But I think that there's still um there is a human touch that needs to be had. I don't like it if I call a pharmacy and I'm talking to their AI agent. I don't like that. I'm always asking for a human and eventually somebody gives me to a human. So I think that that's necessarily true in all kinds of things.
>> Yeah, I think you're right. I think that I think in fact I say the more AI the more people crave the human uh connection that becomes more and more important that we deal with. So, well, speaking of human connections, um, look, I know that you benefited greatly going to court over the years from other senior attorneys. Um, I think, uh, Gary Rottenberg was one in particular, I would see, and I would see you was, >> uh, uh, would would hold court and you would, uh, be there to turn. I also I would always see you with other attorneys, uh, as well. And I think I just want to thank you for kind of stepping into that role. Not to say that you're at the end of your career or or to aid you or anything, but the opposite, but to say well, but to say that you've been very kind with me uh always from the very beginning and very kind, I think with the industry to share your knowledge and experience and I really appreciate that. Like I said, I've worked with you both representing my client. I've worked with you representing uh I guess litigating against my client, other clients. And the one thing that's consistent is you've always been um I want to say um effective and communicative and educational. I really appreciate. Thank you so much for what I want to say.
>> I I appreciate you bringing me in uh on your podcast again >> and uh hope to see you soon.
>> You are my favorites. Anybody who wants more information or wants to get in touch with Mina to talk about a litigation case, circinlawgroup.com is a website. Circinlawgroup.com. She does litigation. Her husband I think also does estate planning and the front end to avoid uh litigating. So you can avoid seeing Mina. If you hire her husband or refer her husband to do the estate planning and if you go to another state planner, you might end up seeing Mina on the short side of a matter. Uh, and there's her contact information below.
>> Great. Thanks a lot, Bill.
>> Thank you, Mina. Thank you so much. really appreciate your time today.
>> Have a good day.
>> And for everybody else, this is Probate Weekly. We get together every week and interview oftentimes attorneys in the practice of probate administration or like today litigation or avoiding it with estate planning or other vendors. Uh, if you like this content, have comments, uh, please uh reply, put it in the description, contact me at Bill Gross Probate in social at Bill Gross Probate on social media. And as always, make today your best day ever. Thank you.