KGCI: Real Estate on Air - Navigating Probate Litigation and Authority with Expert Attorney Mina Sirkin

Episode Date: September 24, 2026

Summary:Probate litigator Mina Sirkin joins host Bill Gross to discuss the critical complexities of selling real estate within estates and trusts. The episode highlights the dangers of "jumping the gun" without verified court authority and the necessity of identifying all heirs and occupants before listing. Sirkin provides a deep dive into procedural differences between probate and trusts, such as timelines for the Notice of Proposed Action and the importance of early appraisals. Agents will learn tactical strategies for managing emotional family disputes and the value of maintaining detailed "index card" records for every case.

So selling real estate is fun when everything goes well. The question is what happens when there's a problem or a 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 the Minnesota? And thank you for coming back on Probate Weekly.

Thank you for having me again. So one of the, you know, we talked to a 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 being the agent on the other side. I've watched you in court as well. I've seen you in the hallways and know that your respected member of the probate bar. So you really are one of the L.A. counties most active or involved litigators involved in when there's challenges in these and when things go wrong.

So let's talk about before we list the prop, you kind of the list of some of the problems to avoid to be aware of. And I know you mentioned one of them is about who has the authority and how that's that. and determine what the next steps are. Talk a little bit about maybe some of the mistakes you've seen or challenges that one should avoid regarding who has the authority and how to make sure you have the right party involved. So in a state's and trusts, there's different people with authority. So in a state, you either have an executor 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 have to be followed by the person with authority.

Sometimes litigation comes about in determining who has the authority. Sometimes in an estate, in a probate estate, there's a challenge to a will. Or if there is no will, there's a challenge to the person who is filed to become the administrator of the estate. So some of those things can end up confusing people, can confuse errors, can confuse realtors. So if you have an estate and you're a realtor, you want to make sure that you have 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 executor of the will, it doesn't mean I've been appointed yet. It means that my name's on a will, but it doesn't mean that the court's given me the okay to go ahead.

But being appointed is a primary step in an estate for an executor or 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 who all the heirs are and try to get some kind of written consent ahead of time. If you think you can't get that, you know, propose some other ideas,

be a professional fiduciary to come in just for the purpose of the sale. That can sometimes avoid all the issues that the other people are dealing with, which could take a year or two to resolve. If you have a will contest, that isn't going to be resolved tomorrow. In fact, the first case that I worked with you on was such a case where there was a man who was filing for probate that you were representing. I think he was. he was the brother or cousin or uncle of the decedent. And then there was another, there was a woman who was purporting to be his decedent's wife.

Turns out he was a girlfriend. And so they were both making cases with the court as to who should be an authority. And in this particular case, I was able to get you and the attorney degree to allow me to get the property sold, the money put in escrow, or I should say a blocked account. And then both parties can argue over the money instead of arguing with 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, you know, with the right attorney,

and I think if you have attorneys who are looking to both serve the customer, 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 seat would have left it to them or family members who say there's no way this guy would have left it to this person. It becomes a challenge.

So, yes, there are things that can be done. Even in a state setting that took five years to resolve, sometimes a special administrator could be appointed, sometimes a professional fiduciary could be appointed. It varies 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's a, so that issue of who has authority 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 who the actual trustee is and is there going to be another challenge in determining the identity of the trustee. So just kind of give you a cautionary word about making sure that whoever you're dealing with

is actually the person that has authority, even a trust setting. Notice of proposed action is a very common theme, that happens both in an estate setting, if there's independent powers, and in a trust setting, they have different timelines. In a trust setting, you have a 45-day timeline, in a state setting, you have a 15-day timeline. There's similarity between the two of them, but there's a little bit of a larger time lag in trust, but less headache sometimes in a trust setting.

Just clarify for those who don't know, when you say 15 or 45D notice of proposed action or NOPA, it only goes that long if somebody doesn't respond, and then the default is they approved it. But you can 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. That is very true. So another thing that actually comes up that realtors 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, the property is not ready for a sale. The who is impacted by the sale? 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 executor have agreed to keep this person in place. But most importantly, you have to find out if the person will allow you. you to market the property, show the property, list it, will not interfere with the regular sales process. And sometimes we have errors who are very angry because they've lived there for a long time, they didn't pay rent, and they're angry. They don't want to leave. So you have to ask yourself, how do I find a way for this person to have housing? because ultimately if you have somebody who's fearful of losing the place they live in, they're not going to help you.

Right. The opposite. They make appointments and then purposely not show up, but purposely not open the door or chase away inspectors, chase away appraisers. I mean, they'll actually do the 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. Sometimes all they want is some money to go somewhere.

Sometimes they need someone to help them otherwise. There's a lot of different 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 were effective. the last two years, I would say almost every case it's been impossible to evict the party without years of litigation and more common now we're selling the property.

I've done it a couple of times. 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 add a less premium than I would cost the estate. Do you see that? Are you seeing cases where? Yes, there are sometimes.

there are sometimes those cases where the investor will take the property subject to the rights of whoever the occupants are. Whatever those rights. Good luck with that. I had one recently where we sold it was a hot market in Tarzanagh and seen I think a year ago we sold it and a year later the investor called me can you help me get it out. It said no that's what we sold it we could get them out it was just a nightmare. Yeah it's it's a it's a challenge but you know if you can answer 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. Because once it's listed and things are happening, that person is going to become reluctant. But before it's listed,

there's more than you can do that otherwise meets the eye. Yes. What? What? What? What? What? One thing also you brought up as a common problem that you've seen is people start with either the probate filing set of errors or with expectation of who the errors are and then later discover more errors. Maybe they passed 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 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 in testate. And let's just say that Mrs. X died in 2021.

She thought her all the 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 part heirs of this estate. So sometimes it becomes a challenge because, you know, certain people have expectations. You know, the siblings of the decedent 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.

And that becomes a source of times. So you have to ask yourself these questions. Sometimes you think you have three ears and you end up with six. I had one of those with where they discovered the husband had a child out of wedlock but was

entitled by law to I think half, you know, he's, she was the only child at woodlock. So half went to the spouse, 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 fire. And so that's a case where it's sad. And our job is to be non-judgmental and to support our customer or client. But it is certainly worth digging the work and finding out what you can about this as quick because 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, try to find out what we can about it.

Years ago, my family members used to buy cars from a car broker. And this car broker had an amazing methodology of selling cars. At the time, 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 and may need it. car to go to college, you know, and her timing was almost impeccable. So the same went true with realtors. You know, the more you know about the family members, the better you can serve

them because you could predict some of the needs of the people. So if you guys can revert back to the index card system, and make sure you have one for every case and know every case. And know every 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 in-ness cards or we had address books. 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 write it in and you keep it over five, 10 years. 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 phylofaxes or notebooks, three ring finders that had all this information. I think there was actually some 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, those are the things.

those pieces of information also go with. Yeah. Yeah, there's just different methods that were used. Maybe I'm just old-fashioned, but I think some of that's still useful. Yeah, no, I think it's very important. I think you have to have it on 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 to put it in one central place.

Talk about a little bit about pre-sell requirements. There's differences, obviously, for a probate. that is for a trust. Talk about first trust. What are the pre-sell requirements typically? When do you need a notice to list the property? I know that oftentimes people think that's required to probate. It's not. It is on conservatish ships, I believe. Talk a bit about trust, what the procedures are in order to list the property. So assuming you have a general revocable trust and you have a successor trustee that has come in, the very first thing 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 and have pictures. Having pictures tells a visual story as well. So maybe the appraisal comes out a million dollars, but that there's deferred maintenance, that there's a cleanup requirement. So having appraisals and pictures really would focus your trustee before they give a notice of proposed action. So notice of proposed action should come after the appraisals 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 45-day period, somebody will say, no, you know, I think you're underselling it. 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 that represents some charities. So gathering that list of beneficiaries is one of the primary things that we do, and then appraisals, and then the notice of proposed action.

So those are the first few things that we do that kind of at least open up the door to a proper sale. I see that attorneys often will instruct me when they list a trust property in particular to create a marketing period up front, meaning while we can see. say strategically, we're going to just not accept offers before two weeks from today that for whatever reason, we're vacationing, family, 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 in order to, I imagine it's established that we were on the market for a while

we had time to consider all options. Is that something that you recommend as a best practice? It varies case by case. You know, in different situations, sometimes I ask the realtors if they would just present all the offers at the same time. So, you know, that even though you can make an offer, that it's not going to be presented for two weeks for whatever reason. 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. That'll give us the ability to have more information, essentially. I think if an attorney asks you for that pre-marketing period,

it's because they need more information to be gathered during that period for their client. Sometimes clients are out of state. We can't get to them. You know, it's hard to do that. So, yeah. One of the challenges I was questioned 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 escrows and been at both sides. I've been where my client's being lit as being sued by you or, but I feel very comfortable in our relationship.

I feel like we communicate well. And even still, I'm always hesitant. There's a line between sending you too much information and sending you too little, both to my maybe to the client, the administrator, executor, and the attorney. One of the fears you always have is, well, you know, the client's going to say, well, everything you see my attorney, they review and bill, and my bill's going up and please stop, you know, I've had that complaint, not with you, but I'm with, I've had that complaint from customers or that feedback.

For me, I do try to create a spreadsheet of all offers and both outline the 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? And where do you draw that line? My preference is that the realtors 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, that there was a problem with one of the tenants unless that problem is not resolvable. Sometimes things happen and the problem resolves itself. But I don't necessarily need to know about every detail of the problems until there's something that, that just the client and the realtor cannot resolve.

That will save a lot of money for the trust in the state as well. Sometimes things are beyond the scope of what's considered legal. Okay. I don't necessarily need to know 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'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 mean, I think, I think we appreciate not that.

being in the loop for a lot of the nitty-gritty of the real estate cases. 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 it's hard as a real estate agent to imagine what's going to be the legal item or not. we got offers that are good for three days. 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 these dates in mind makes sense. Sometimes you get an offer and they don't comply with that. 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. And which case you have to present it when you have to present it. Then you have to present at the time. So that's one of those things. So another area that, you know, you and I over the years, 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, and I'm pretty involved in this, I still don't have a very clear sense of what is a litigation case that attorney is going to take versus one that's not. I think I've come to understand that, you know, anybody's litigating who really thinks

they've been wronged to get to really take a matter to court. they either have to have a million dollars at issue for contingency or have at least $100,000 in cash that they can put down to get the process started into 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, about when somebody should call an attorney like you to discuss a problem versus

What are more trivial things that you'd rather not to call? Or what things should 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 in controversy has to be large enough to be able to even entertain the case for a contingency case. Because if it's not, the client's not going to be happy. I'm not going to be happy. And ultimately, you may resolve the case, but not at all.

way that would have been, you know, appropriate. So I think everybody who enters a litigation case as a customer, 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. So having that piece of information about the opposing side 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. 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, older lawyers with larger retainers. Of course, everybody is paid for their experience. But keep that in mind. 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 some cases, in many cases, find somebody else who might, you know, point them a direction they might want to go to get something done. So I know, you know, back pre-COVID, back my first man, I was working with you,

and we see you in court regularly, you know, you were an active member of the probate bar. And you knew, if you didn't know them, they weren't worth knowing. You knew everybody who seemed to be active in the probate courtrooms. And that's gone away. I think that you, I'm sure you go to court occasionally. There's certain things that require it maybe, but in general, I'm sure you don't go, you know,

even one-tenth 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 you got when you started. You know, how do you see kind of change in the court procedure as being more online and maybe a little more efficient at the court, it seems like? How does it affect your business? and how you see it affecting the next generation of attorneys? The court's become a little bit more efficient over the years.

There was a gap in time, you know, prior to three years where things were just not flowing well. But I think that they streamlined it better now, so orders are flowing a little bit easier. For us, that's what really counts, is getting the orders on time. Because can't close escrow. if you don't have an order

in probate and you really, you know, your clients are waiting waiting for something to occur but it's happening. I mean, I think that it's getting better for the younger generation of lawyers. I think the learning curve

is shorter in some ways now than it was back then. How so? I think that there's a lot more tools available now for younger lawyers than there were back when we were, you know, going through the motions of this. But I think 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. someone who hasn't had that done a number of times won't think that that's a solvable problem. But 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. 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 they've went free. I had a case with you.

In fact, I think it was the first one we did where it was a court-confirmed sale and the rules are, the rules are can't sell the property for less than 9% 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 that they could accept it. And I don't think as a new attorney, if you're 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 when you've 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. And I think more importantly, where you stand out, that experience just can't be replicated that you got for the first 30 years of your career. And I think that that's a real leverage for the current period of your business.

Sometimes. Sometimes I'm going. Yeah. I mean, there's plus and minuses of being older and more experience, obviously. but I do think that that's, I know in real estate too, same thing. They 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 there with us as well. So just to wrap up, since the largest number of people watch this podcast are real estate agents, you know, what are one or two things that you see most routine mistakes that real estateations 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 a common mistake. 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 realtors 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, 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. And maybe that creates some kind of rapport for you with the occupant of the property. So I think there's a lot to be said about personal service still. Yes. 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 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 best attorneys can't be replaced with AI. They can be enhanced and they can be leveraged, but they can't be replaced for that experience. The AI is not going to court and not doing the things you did of last 35 years. it's just getting the input to the cats and see what the realtor. I am sure things will change as AI changes. Things will change in the next four or five years as things get better. But I think that there's still there is a human touch that needs to be. 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. In fact, I say the more AI, the more people crave the human connection. That becomes more and more important that we deal with. So, well, speaking of human connections, look, I know that you benefit greatly going to court over the years from other senior attorneys.

I think Gary Rottenberg was one in particular, I would see. He was, yeah. He was retired. was would hold court and you would be there to turn. I would always see you with other attorneys as well. And I think I just want to thank you for kind of maybe stepping into that role, not to say that you're at the end of your career or to age you or anything, but the opposite, but to say, well,

but to say that you've been very kind with me 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 a guest litigating against my client, the clients. And the one thing that's consistent is you've always been, I want to say, effective and communicative and educational. I really appreciate it.

Thank you so much for what I'm listening. I appreciate you bringing me on your podcast again and hope to see you soon. You are my favorites. Anybody who wants more information and once again in touch with me to talk about a litigation case, circundlawgroup.com's website, circenlawgroup.com. She does litigation or husband, I think also does estate planning and the front end to avoid litigating. So you can avoid seeing Mina if you hire her husband or for her husband to do the state planning. And if you go to another state planning, you might end up seeing Mina on the short side of the matter.

And there's a contact information below. Thanks a lot, Bill. Thank you. Mina, thank you so much. Really appreciate your time today. 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.

If you like this content, have comments, please reply, put it in the description. Contact me at Bill Gross Probate on social media. At Bill Gross Probate on social media. As always, make today your best day ever. Thank you so much.