The KRASA LAW, Inc. Estate Planning Blog

Monday, November 22, 2010

What is Probate?

If an asset is titled in the decedent's name at death, generally nobody else will be able to manage it.  For example, if a loved one owns a checking account and then passes away, the bank will not take direction from anyone in terms of what to do with that account.  Instead, the account will be frozen until someone is able to provide the bank with proof that he or she has the authority to deal with the asset.  The same is true with all kinds of assets including savings accounts, investment accounts, stocks, bonds, and real property.

By submitting the decedent's estate to probate, you are requesting that the Court appoint someone as Executor and issuing "Letters of Administration," legal authority that allows the third party to manage all assets that are titled in the decedent's name.  By showing the "Letters of Administration" to the financial institutions, the Executor will be able to take control of the decedent's assets.  With this authority comes responsibility.

The Executor has the legal duty to take inventory and appraise all assets in the estate, protect the assets of the estate, notify known creditors of the decedent's death, publish notice in a newspaper of the decedent's death to give unknown creditors the opportunity to step forward, address creditor claims, pay taxes, and keep the beneficiaries informed. 

After all of the above tasks are completed, the Executor is ready to request the Court's permission to distribute the assets to the beneficiaries of the estate.  The Executor must file a "Petition for Final Distribution" which reports on all of the Executor's activities and proposes how the estate should be distributed.  Once the Court approves of the proposed final distribution, the Executor is able to transfer the assets to the beneficiaries.

Most of the time, the Executor is not able to accomplish all of these tasks without legal counsel.  Attorney fees for probate are set by statute and are based upon the gross value of the estate.  Such fees are usually much higher than if the Executor were able to pay the attorney an hourly rate. 

Most clients who are familiar with the probate process choose to base their estate plans around a Revocable Living Trust which allows loved ones to avoid the probate process all together.  All of the above tasks will still need to be performed, but with a properly drafted Revocable Living Trust, the courts most often can be avoided entirely and there are no set statutory attorney fees: the trustee and attorney can agree on whatever fee structure is most appropriate for the specific situation.

Monday, November 22, 2010

The Beneficiary Controlled Trust

Most Estate Planning attorneys recommend Revocable Living Trusts as the main vehicle for managing assets in the event of incapacity and transferring assets upon death.  The most common reasons for utilizing Revocable Living Trusts are (1) probate avoidance and (2) the minimization or elimination of Estate Tax.  While these are important objectives, most Estate Planning attorneys fail to fully utilize all beneficial aspects that a trust structure can provide, particularly for the Revocable Living Trust's beneficiaries.

If the attorney only thinks about (1) probate avoidance and (2) the minimization or elimination of Estate Tax as the reasons for creating a Revocable Living Trust, the attorney most likely will structure the trust to provide "outright distributions" to the beneficiaries upon the death of the trust makers.  This means that the trust will distribute the inheritances out to the beneficiaries in their individual names and then the trust will terminate.  The inheritances will be comingled with the beneficiaries' other property and subject to the total control of the beneficiaries.  While this makes sense on the surface, a deeper understanding of the additional advantages trusts can provide for beneficiaries demonstrates why outright distributions - though extremely common - are less than ideal.

If a trust is properly structured, receiving an inheritance in trust rather than directly in the beneficiary's name can provide additional features such as (1) divorce protection; (2) creditor protection; and (3) additional Estate Tax protection. 

Receiving an inheritance in trust rather than in one's own name creates a bright line distinction between property that has been inherited by a beneficiary and property that the beneficiary and his/her spouse have earned together.  In a divorce, it will generally be much easier to distinguish between what property is separate (the inheritance) and what property is community and thus subject to division.

If the trust for the beneficiary has certain provisions, the inheritance can often be protected from the beneficiary's creditors.  With the proliferation of lawsuits over the last several years, many people are concerned about frivolous lawsuits subjecting hard earned assets to plaintiffs and their attorneys.  Receiving an inheritance in trust rather than outright provides significant creditor protection.

Finally, within certain limits, an in-trust inheritance can mean that some or all of the inheritance received by the beneficiary will not be considered part of the beneficiary's estate and thus will not use up the beneficiary's Estate Tax exemption.

If the trust makers feel that the beneficiary is capable of handling his/her inheritance, the trust for the beneficiary can be designed as a "beneficiary controlled trust," giving the beneficiary the protections of an "in-trust" inheritance while at the same time giving the beneficiary control over the inheritance.  With all of these additional protections, "in-trust" inheritances are far more valuable than "outright inheritances," yet most attorneys are not aware of these additional benefits.

Monday, October 25, 2010

When Inheritance Can Create Unnecessary Problems

When most people create their Estate Planning, they focus on what or how much they are going to give to their loved ones as inheritance.  Very few think about how they are going to structure such inheritances.  Sometimes the "how" question is much more important than the "what" question.  Without careful consideration about how to structure inheritance, you could be creating unnecessary problems for your loved ones.

One of the most important questions I ask my clients during the initial interview process is whether their children or other beneficiaries have any health problems or are receiving any public benefits.  The reason I take the time to ask this question is because if their proposed beneficiaries are on public benefits, it may be necessary to structure their inheritance in a Special Needs Trust.

The most common public benefits programs, which are established and governed under the Social Security Administration, are SSDI and SSI.

SSDI is an "entitlement" program which means that eligibility is based upon how much you have paid into the Social Security system through taxes.  SSDI is a monthly stipend the amount of which is based upon your estimated Social Security benefit had you been able to work until retirement age if you did not have a disability.  Although you have to meet the definition of "disabled" in order to receive this stipend, it does not matter how much money or income you have.  An SSDI recipient is therefore able to receive an inheritance without worrying about interference with his/her SSDI stipend.

SSI is also a monthly stipend.  However, the amount of the stipend is fixed.  SSI is a "means tested" benefit: you must be under a certain asset and income level in order to qualify.  If your asset level ever exceeds the maximum allowed in order to receive SSI, you will lose all of your public benefits.  As a result, if you are an SSI recipient, an inheritance will likely throw you off public benefits.

The good news is that a properly drafted Special Needs Trust will allow the SSI recipient to enjoy the benefits of an inheritance while still maintaining his/her public benefits.  However, it is important to address these issues in the planning stages, which is why proper and comprehensive Estate Planning is essential.

Friday, October 22, 2010

Estate Planning - Not Just for the Wealthy

When most people hear the term, "estate," they think of Bill Gates and Oprah Winfrey; they think of large mansions with vast property.  As a result, most people logically think that "Estate Planning" is reserved only for the wealthy.  The truth is that the right kind of Estate Planning is appropriate for everyone.  In fact, in certain situations, proper, comprehensive Estate Planning is much more important for lower income individuals.

 In California, all estates worth over $100,000.00 are subject to probate.  Probate is a time-consuming and expensive public process that most people want to avoid.  Furthermore, until a person is appointed Executor by the Court, all of the decedent's bank accounts and other assets are frozen.  It takes at least a month for someone to be appointed as Executor as well as approximately $355 in filing fees and approximately $500 in publication fees.

For wealthier families, this is a mere inconvenience at most as they would be able to front the costs of the filing and publication fees as well as the expenses of the estate such as mortgage, rent, and insurance, until an Executor is appointed and access is granted to the decedent's finances.  For lower income families, this delay and inability to access the decedent's finances can be crippling.

Not only is Estate Planning a necessity for almost everybody, but proper Estate Planning is essential.  Although there is a proliferation of legal "self-help" guides on the market, using such materials is fraught with peril.  I have seen cases were self-drafted Wills did not meet the legal execution requires, left out key provisions such as waiving the requirement of a bond, or did not provide for circumstances such as a beneficiary's special needs or creditor problems.  The California legislature even recognized these problems with "self-help" materials: "In this age of computers and easy internet access to self-help legal information and forms, one can almost predict the commission of drafting errors and improper interpretations of instructions for form wills or codicils. . . . These technicalities are a minefield for non-lawyers."

Such mistakes can delay the probate process even further, requiring the filing of additional research and other materials before the Court is comfortable in appointing an Executor.

There is an appropriate kind of Estate Planning for everybody with estates of any size.  In each case, proper, attorney-drafted Estate Planning is essential in order to avoid leaving your loved ones with an unnecessary, expensive, and stressful mess.

Monday, September 27, 2010

Living Trust v. Power of Attorney

Estate Planning is more than transferring assets to your loved ones upon death.  Perhaps more importantly, comprehensive Estate Planning includes appointing an agent to manage your financial affairs in the event of incapacity.  Most Estate Plans include the use of both a Living Trust and a Power of Attorney.  Many agents are unclear as to why they need both documents to essentially carry out the same task: manage your affairs while you are incapacitated. 

Your Living Trust is your main Estate Planning Document.  It handles both the management of your assets while you are incapacitated and it also handles the distribution of your assets upon your death.  A key aspect of planning with a Living Trust is that you must re-title your assets to your Living Trust in order for the Living Trust to be effective.  Your Living Trust gives your agent, normally referred to as a "Trustee," authority to manage all assets that are titled to your Living Trust when you are incapacitated.  Conversely, your Living Trust does not give your Trustee authority over any assets that are not titled to your Living Trust.

Upon your incapacity, your agent may discover that you forgot to transfer some of your assets to your Living Trust.  In addition, there are certain assets that are purposely not transferred to your Living Trust, such as Retirement Accounts, Annuities, Life Insurance policies, and Social Security.  If your agent needs to manage any of these assets, your agent will have no authority to do so under your Living Trust.  This is where a Power of Attorney becomes necessary.

Your Power of Attorney gives your agent the authority to manage your non-trust assets, i.e., assets that are titled in your individual name.  Under the authority of the Power of Attorney, your agent will be able to manage any assets you forgot to transfer to your Living Trust as well as your Retirement Accounts, Annuities, Life Insurance policies, and Social Security.  In addition, your Power of Attorney will give your agent broader authority over such issues as the ability to gain access to your mail, the ability to deal with the IRS, and the ability to enter into contracts on your behalf.

Comprehensive Estate Planning includes both a Living Trust and a Power of Attorney.  Your agent should be aware of the interplay between these two documents in order to know what document to present when attempting to manage your financial affairs in the event of your incapacity.

Monday, September 27, 2010

Taking Charge of Your Health Care Wishes

Perhaps the most important component of comprehensive Estate Planning is creating a legally binding set of instructions with regard to your health care wishes in the event of incapacity.  Normally when you have a health issue, it is your basic civil right to weigh the medical options, examine the advice given to you by your health care providers, assess the risks and benefits, and settle on a course of action.  However, if you are incapacitated, who is going to make such important and personal decisions on your behalf and how will that person know what you would want?

The best way to address these issues is to execute an Advance Health Care Directive ("AHCD").  The AHCD has two main elements.  The first element is to designate an agent to make health care decisions on your behalf if you are incapacitated.  Your agent's role is to choose your doctor and your health care provider, speak with your health care team regarding your condition and your treatment options, review your medical record and authorize its release when necessary, and accept or refuse medical treatment, including artificial nutrition and hydration and resuscitation attempts.  In choosing your agent, you should consider if that person will be available when needed, is willing to speak on your behalf, knows you well and understand your beliefs, will be comfortable asking your health care team questions, will do his/her best to make decisions in accordance with what you would have wanted, and is willing to be an advocate on your behalf.  It is also a good idea to designate alternate agents in case your first choice is unwilling or unable to act as your agent.

The second element of an AHCD is to generally express your wishes with respect to your health care.  You can write your preferences about accepting or refusing life-sustaining treatment, receiving pain medication, making organ donations, indicating your main doctor for providing your care, or other things that express your wishes and values.

An AHCD is appropriate for all adults, regardless of age or health condition as it appoints an agent and acts as a general guide for your health care wishes.  If you are seriously ill or in poor health, you may want to consider executing a Physician Orders for Life Sustaining Treatment form ("POLST" form).  A POLST form compliments your AHCD and is a medical order signed by your doctor and you which gives much more detail about your wishes with respect to end-of-life decisions.   

Tuesday, August 24, 2010

Maintaining Your Prop. 13 Tax Base

Most real property owners in California have at least a rudimentary understanding of Prop 13, the landmark legislation passed by voter referendum in 1978.  The concern that prompted Prop 13 was dramatically increasing property values that resulted in dramatically increasing property taxes that many homeowners couldn't afford.  Prop 13 first froze the assessed or taxable value of every Californian's home to the March 1, 1975 fair market value level.  Secondly, Prop 13 restricted annual increases in assessed value of real property to an inflation factor not to exceed 2% annually.  The idea was that all homeowners would always have predictability with respect to what their property taxes would be in a given year.
Read more . . .

Tuesday, August 24, 2010

Traps for the Unwary

Most Americans have never done their Estate Planning.  Everybody knows that human beings are mere mortals and that it is a good idea to plan for the event of incapacity or death.  However, for most people, thinking about these issues is uncomfortable and there are many other tasks we'd rather focus upon such as planning a vacation, looking forward to a relative's graduation, and celebrating a birthday.

Some folks who decide to finally do their Estate Planning look for shortcuts such as "do-it-yourself" kits or "trust mills"- out-of-town companies that provide a "one-size-fits-all" plan for a nominal fee.  However, delving into the complicated world of Estate Planning without detailed knowledge of key issues can lead to traps for the unwary.

A common problem is when individuals attempt to draft their own Wills.  While the formalities of a legally binding Will are not complicated, they are specific.  If the Will is typed, the Will must be signed by the testator and must also be signed by two disinterested witnesses during the testator's lifetime.  A common mistake is to have a Will notarized instead of witnessed which does not comply with the law.  If a Will is not properly witnessed, it may still be valid if the material terms are in the testator's handwriting.  If a Will is not properly witnessed and if the material terms are not in the testator's handwriting, a Will may still be valid if there is "clear and convincing evidence" that the testator intended the document to be his or her Will.  While the Will may eventually be considered valid, a lack of proper formalities can create unnecessary hurdles. 

Another common problem relates to Trusts.  Most individuals decide to use a Trust rather than a Will in order to avoid probate.  However, a Trust will only control what is titled to it.  Many people who use "do-it-yourself" kits or "trust mills" will draft a trust but will fail to properly re-title their assets to their Trust.  As a result, they have an empty document that is ineffective and it is as if they never did their Estate Planning in the first place.

Finally, without proper guidance, many people do not realize that other mechanisms may supersede the provisions of a Will or a Trust.  For example, any property held in joint tenancy will automatically pass to the surviving joint tenant, even if the Will or Trust has a specific clause that gives the property to someone else.  Retirement plans and life insurance are controlled by beneficiary designations.  If there is a conflict between the beneficiary designation and the Will or Trust, the beneficiary designation controls.

Most people think their Estate Planning is simple.  However, without detailed knowledge of the complex laws, many people fall into unexpected traps that lead to tragic results.  

Thursday, July 29, 2010

Incorporating Savings for College in your Estate Plan

The cost of higher education in the United States is staggering and is climbing rapidly each year.  This fact combined with the scheduled dramatic reduction in the Estate Tax Exemption starting on January 1, 2011 causes many clients to think about planning for their children's or grandchildren's future college expenses in the course of addressing their Estate Planning.

One of the simplest ways to reduce the future impact of the Estate Tax is to make gifts.  If you have a smaller estate at death, there is less for the IRS to possibly tax.  However, there are two primary concerns that arise when contemplating making gifts to children or grandchildren to fund future college expenses as a way to reduce the impact of potential Estate Tax.

First, many parents and grandparents are not keen on the idea of giving children direct access to thousands of dollars.  As soon as the children or grandchildren turn 18, they're likely headed directly to the Porsche dealer.  Second, generally there are limits placed on how much donors can give away each year without impacting their Estate Tax Exemption.  Currently, the limit is $13,000 per year per beneficiary.

A solution that navigates both of these concerns is a § 529 College Savings Account ("CSA").   In a CSA, a contributor funds an account for purposes of meeting the qualified higher education expenses incurred by a beneficiary in the future.  Distributions made for qualified educational expenses are tax-exempt.   The contributor is typically the account owner, and retains significant controls over the account, including the ability to control distributions, to change the beneficiary, and to reacquire the assets in the account.  Contributions are not deductible for federal income tax purposes but are treated as completed gifts.  In addition, a special provision applicable only to CSA's allows a contributor to fund an account with an amount equal to 5 years' worth of $13,000 annual exclusions at one time, and elect to treat the contribution as if it were being made pro rata over 5 consecutive years.

Because the account owner holds such significant controls over CSA's, an individual's CSA should be considered at every estate planning juncture.  For example, if an account owner dies, who has control over the CSA?  This problem can be resolved by either naming a successor owner or by transferring ownership of the CSA into a Revocable Living Trust.  Any such Trust should have special provisions concerning the management and investment over the CSA.  Additionally, the specific CSA account agreement should be consulted to ensure that the particular plan allows for either successor owners or Trust ownership.

Tuesday, July 20, 2010

Press Release: Nationally Recognized Law Firm Forms "Of Counsel" Relationship with KRASA LAW

Wealth Strategies Counsel and Jeffrey R. Matsen, One of the Nation’s ”Top 100 Attorneys” according to Worth Magazine, has formed an “Of Counsel” relationship with the Pacific Grove firm of KRASA LAW.

July, 2010
Pacific Grove, California
Kyle A. Krasa of KRASA LAW, a Pacific Grove, California Estate Planning Law Firm, is happy to announce that Nationally Recognized Estate and Business Planning Attorney, Jeffrey R. Matsen  and his Orange County, California firm, Wealth Strategies Counsel  (WSC) of Bohm, Matsen, Kegel, & Aguilera LLP, are “Of Counsel” to KRASA LAW.  This relationship provides KRASA LAW with additional resources and prestige associated with Attorney Matsen and his firm, ultimately increasing the services to clients with Estate, Business and Asset Protection Planning as well as the ability to provide Offshore services.
Attorney Kyle A. Krasa is a native of the Monterey Peninsula.  He provides clients with personal, compassionate, and thorough legal services in the practice areas of Estate Planning, Elder Law / Medicaid Planning, Asset Protection, and Probate / Estate Administration.  He is a Certified Legal Specialist in Estate Planning, Trust & Probate Law by the State Bar of California Board of Legal Specialization.  Kyle is known for his Client-centered, holistic approach and for his ability to explain complex legal principles into easy-to-understand "plain English."  His clients' testimonials, which can be found on his website at, describe him as patient, kind, knowledgeable, and a pleasure to work with.

Attorney Jeffrey R. Matsen’s knowledge, professionalism, responsiveness and integrity have vaulted him to the top of his field culminating in his designation by Worth magazine as one of "America’s Top 100 Attorneys", by Los Angeles Magazine as one of California’s "Super Lawyers". The Nationally Renowned Attorney Rating Service, ‘AVVO’ has rated Mr. Matsen a perfect "10/10 Superb" and he has continued to achieve the highest "AV rating" and has been designated a "Preeminent Lawyer" by the only other prestigious attorney rating directory, Martindale Hubble. He is internationally recognized in the areas of Asset Protection, International Trusts and Offshore Business Entity Formation and has a myriad of world-wide legal, financial and business connections.
Matsen is the founding partner of Wealth Strategies Counsel (WSC), the Estate Planning and Business Transactions Department of the Orange County California premier law firm of Bohm, Matsen, Kegel & Aguilera, LLP with offices in Orange County California, Chicago, Honolulu, Salt Lake City, Boise Idaho, New York City and now, Pacific Grove/Monterey/Carmel, California.  With over 35 years of experience, WSC handles complex and sophisticated asset protection, estate and business planning matters locally, nationally and internationally.  WSC serves a variety of clients by providing solutions they can count on and advisors they can trust.  WSC make certain that their client’s wishes are not only being fulfilled, but that they are sound and tax advantaged.

Both KRASA LAW and WSC are members of Wealth Counsel (WC), a national association of Estate Planning attorneys and a leading provider of tools and intelligence to the Estate Planning community. It provides its member attorneys with back office technology solutions and continuing legal education that keeps them on the leading edge of professional knowledge and engages the attorney membership in a collaborative network where each attorney can exchange ideas and problem solve. There are over 1000 member attorneys nationally in Wealth Counsel, including many of the leading Estate Planning practitioners in the country. Attorney Matsen has presented continuing legal education through WC and continually collaborates with other WC attorneys, which is how the two firms became associated and began working on mutual cases together.

 “I am excited to be affiliated with KRASA LAW and value Kyle's opinions and ideas!  The decision to join KRASA LAW on an 'Of Counsel' basis was made after considerable due diligence and concluding it is a very professional and outstanding firm. Our combined expertise and resources provide a strategic advantage to our mutual clients,” stated Jeffrey R. Matsen, Founding Partner, Wealth Strategies Counsel.
Kyle A. Krasa, of KRASA LAW said, "I am honored to have Jeff and Wealth Strategies Counsel as my 'Of Counsel.'  In this complex legal climate, it is important to be able to exchange ideas and brainstorm about various legal strategies in order to make sure all clients receive the best legal services possible.  Being able to collaborate with a prestigious and knowledgeable attorney such as Jeff, and to have a large, "big city" law firm and its sophisticated staff as a "back office," is invaluable and is another way to provide value-added service to my clients."

Jeffrey R. Matsen of Wealth Strategies Counsel helps his clients structure their personal and business assets in the best way possible to preserve, protect, and transfer them in the most efficient and tax saving manner.
Kyle A. Krasa, of KRASA LAW, takes a warm, personal, and guiding approach to assisting clients in the areas of Estate Planning, Asset Protection, Trust, Probate, and Medi-Cal Planning.
Kyle A. Krasa, Esq.
704-D Forest Avenue
Pacific Grove, California  93950
831-920-0205 (Phone)
831-274-8224 (Fax)
Ty Mangrum, Executive Director
Wealth Strategies Counsel
695 Town Center Drive Suite 700  Costa Mesa, CA 92626
Phone: 714.384.6500
Fax: 714.384.6551
Jeffrey R. Matsen, Esq. 
Wealth Strategies Counsel
695 Town Center Drive Suite 700  Costa Mesa, CA 92626
Phone: 714.384.6500
Fax: 714.384.6551

Tuesday, July 13, 2010

Yankees Owner Gets Away With It Again!

Over the past several months, I have written several columns about the impact of the 2010 Estate Tax rules.  In summary, there is normally a Estate Tax or "death tax" on inheritances.  The Estate Tax is typically around 50%.  The good news is that not everyone is subject to the Estate Tax.  In most years, there is an Exemption that shelters a certain amount of inheritance from the Estate Tax.  The Exemption has ranged from $675,000 in 2001 to $3.5 Million in 2009.  Under current 2010 law, there is an unlimited Exemption from the Estate Tax which is another way of saying that there is no Estate Tax.  However, in 2011, the Estate Tax comes roaring back with only a $1 Million Exemption.

At the start of 2010, many observers felt that Congress would retroactively pass a law that would prevent an unlimited Exemption for decedents dying this year.  Although the House passed legislation in December 2009, the Senate was never able to ratify the bill.  Now that it is the middle of summer, most experts feel that Congress will not be able to pass any retroactive Estate Tax legislation for the year 2010.  Furthermore, observers felt that if an ultra wealthy person died in 2010, that person's heirs would have great incentive to challenge any attempted retroactive Estate Tax legislation.  As it turns out, a few ultra wealth individuals did in fact die in 2010, including New York Yankees owner George Steinbrenner.

When George Steinbrenner purchased the Yankees in 1970, he paid $10 Million.  Today, the team is worth approximately $1 Billion.  If George Steinbrenner died in any other year, his heirs would have been required to pay hundreds of millions of dollars in Estate Tax.  However, because the 80-year-old baseball icon died in 2010, his heirs will not have to pay the IRS a dime in Estate Tax!  If Congress attempts to pass a law that retroactively reinstates the Estate Tax in 2010, you can bet that heirs such as George Steinbrenner's family will hire high-powered attorneys to challenge the legality of retroactively creating such a law.  As the husband of a native New Englander and a loyal Red Sox fan, it's disheartening to see George Steinbrenner get away with another one.

With the passing of George Steinbrenner, it definitely appears that there will not be any Estate Tax for decedents dying in 2010.  However, observers thus far have not had good luck in predicting what will happen with regard to the Estate Tax law.  Almost all practitioners agree that Congress needs to come up with a permanent and fair Estate Tax solution for decedents dying in 2011 and beyond.

KRASA LAW is located at 704-D Forest Avenue, PG, and Kyle can be reached at 831-920-0205.

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KRASA LAW assists clients with Estate Planning, Elder Law, Pet Trusts, Asset Protection, Special Needs Planning and Probate / Estate Administration in Pacific Grove, CA(93950), Monterey (93944, 93940, 93943, 93942), Salinas (93901, 93905, 93906, 93907), Hollister (95023,95023) Pebble Beach (93953), Carmel By The Sea (93921), Seaside (93955) and Carmel (93923, 93922) in Monterey County and San Benito California.

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