Articles Posted in Wills & Trusts

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On March 24, 2015, the panel of Probate Judges discussed the current state of Probate Court in Los Angeles County and addressed questions and concerns submitted by members of the Beverly Hills Bar Association. Fortunately six probate judges from the Los Angeles Superior Court – Central District were able to attend the lunch at Lawry’s in Beverly Hills.  This program was presented by the Trust and Wills Section of the Beverly Hills Bar AssociationIMG-20120406-00236.
The Judges present were:

Judge David J. Cowan (Department 79)
Judge David S. Cunningham (Department 67)
Judge Lesley C. Green (Department11)
Judge Clifford L. Klein (Department 9)
Judge Daniel S. Murphy (Department 29)
Commissioner Brenda Penny (Department 9 /MSC)

This occasion presented an opportunity to discuss the current state of the Probate Court and addressed issues and concerns affecting the Court, the courtroom transitions and many other substantive issues.

In addition, The Timothy Whitehouse Award will be presented to the Honorable Brenda Penny for her outstanding contribution to the practice of Trusts & Estates over a long and distinguished career.

Overall a very informative presentation that was attended by firm partner and trust litigator, Yasha Bronshteyn.

At Ginzburg & Bronshteyn, LLP we are dedicated to providing efficient, effective, and affordable solutions to clients involved in conservatorship cases, trust and estate disputes, as well as other types of family law issues. We are here to help you and your loved ones. To discuss your needs and discover your options, consult the Los Angeles incapacity and estate planning attorneys at Ginzburg & Bronshteyn, LLP. We serve clients in Los Angeles, Orange County, Ventura County, and throughout Southern and Northern California including Agoura Hills, Beverly Hills, Calabasas, Camarillo, Encino, Hidden Hills, Irvine, Lake Sherwood, Malibu, Oxnard, Pasadena, Santa Barbara, Santa Monica, Simi Valley, Tarzana, Thousand Oaks, Torrance, West Los Angeles,Westlake Village, and Woodland Hills. Our attorneys are renowned for producing high quality work and working diligently to achieve our client’s goals. If you or someone you know is dealing with a dispute over the administration or execution of trust or estate in California, you should contact an experienced trusts and estates litigation attorney to ensure your interests are represented. We have developed a reputation for effective representation in complex and sophisticated matters as we guide you through the complex legal process. We are experienced in obtaining and defending against conservatorships.  If you have questions about a loved one’s mental capacity, call the law firm of Ginzburg & Bronshteyn, LLP at (310) 914-3222 or (818) 787-1011, or reach us by using our online contact form.

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Estate of Stoker – filed March 3, 2011, Second District, Div. Six. Cite as 2011 S.O.S. 1274
This case involves two issues under California Law that are seen and dealt with in the Probate Code.

One issue is the required “Notification by Trustee” to all beneficiaries and heirs-at-law upon a trust [or portion thereof] becoming irrevocable [see California Probate Code Section 16061.7].
The operative language of such a notice is:

“No person upon whom the notification by the trustee is
served pursuant to this chapter may bring an action to
contest the trust more than 120 days from the date the
notification by the trustee is served upon him or her, or 60
days from the day on which a copy of the terms of the
trust is mailed or personally delivered to him or her
during that 120-day period, whichever is later.”

The time line was as follows: On May 22, 1997, decedent executed a will and nominated Gularte to be the executor of his estate. In article two of the will, he listed Karotick and Gularte as the beneficiaries of gifts of personal property. In article three, he stated, “I give the residue of my estate to the trustee of the 1997 Steven Wayne Stoker Revocable Trust, created under the declaration of trust executed on the same date as, but immediately before, the execution of this will . . . .” Gularte was listed as the successor trustee of that trust. Decedent died on February 27, 2008.

On March 17, 2008, Gularte filed a petition to probate the will and requested that she be appointed the executor.

On March 18, Gularte served a notice to decedent’s children (respondents) that pursuant to sections 16061.7 and 16061.8, they had 120 days to bring an action to contest the trust.

On March 25, Pradia filed an objection to Gularte’s petition to probate the 1997 will and claimed that her father had executed a more recent will. She objected to Gularte being appointed executor.

On April 28, respondents filed a petition to probate a handwritten will signed by their father on August 28, 2005.

In Stoker, the court held that, where the petition to admit the will to probate had the practical effect of challenging an earlier trust, the filing of the petition was an “action to contest the trust” within the meaning of California Probate Code Sec. 16061, which requires that such an action be brought within 120 days following service of notice by the trustee.

The Court held that the petition to probate the 2005 will is, “in practical effect,” an action challenging the validity of the trust. (Silberman v. Swoap, supra, 50 Cal.App.3d at p. 571.) Respondents’ petition was timely filed within the 120-day period. Filing a second petition labeled as an action to contest the trust would amount to unnecessary duplication.

The second issue of Estate of Stoker was California Probate Code Section 6110(c)(2) (once again effective January 1, 2009) which allows, where a will is not executed in compliance with the statutory requirements for witnesses, that “the will shall be treated as if it was executed in compliance with [the requirements for witnesses] if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.”

The simple facts of the case concerning revocation of the will are: Steven Wayne Stoker signed a will in 1997. In it he left some items of personal property to friends, but the residue (and bulk) of his estate was to go to the Steven Wayne Stoker Revocable Trust, which he had signed that same day. The trust named his girlfriend, Destiny Gularte, as trustee and beneficiary. At some point they had a break up. Gretchen Landry, a friend of decedent’s, testified that in 2001 decedent took Mr. Stoker original copy of the 1997 will, urinated on it and then burned it. The Court felt that decedent’s actions lead to the compelling conclusion he intended to revoke the 1997 will.

The appellate Court held that the trial court did not err in admitting it to probate under Section 6110(c)(2) based on clear and convincing evidence of decedent’s intent in the form of testimony by two witnesses who saw him sign it. Public policy in favor of validating wills that reflect decedents’ intent supports retroactive application of Sec. 6110(c)(2) [which was effective as of January 1, 2009] to wills executed before its effective date. Lack of testamentary language, the absence of the use of the word “will,” or reference to death did not preclude finding that document was intended by decedent to be his will.

To discuss your needs and discover your options, consult the Los Angeles incapacity and estate planning attorneys at Ginzburg & Bronshteyn, LLP. We help clients throughout Southern California, including Beverly Hills, Calabasas, Encino, Hidden Hills, Irvine, Oxnard, Pasadena, Santa Monica, Thousand Oaks, Torrance, West Los Angeles, Westlake Village, and Woodland Hills to navigate the stressful course of trust and estate disputes, to create complete estate plans to protect them against a variety of life events, including incapacity. To contact our hardworking attorneys, please contact Ginzburg & Bronshteyn, LLP online or call us at (310) 914-3222 or (818) 787-1011.

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A brief summary of the recent decision the the California Court of Appeal- In the Third Appellant District Case No. C068747
Drake v. Pinkham filed May 28, 2013, publication ordered June 21, 2013,
Beneficiary’s action to invalidate trust amendments based on lack of capacity and undue influence was barred by laches where the facts alleged by beneficiary were known to her five years before she filed the action, and the delay was necessarily prejudicial because the settlor had died.

Plaintiff Rosina Jeanne Drake (Gina) appealed from a summary judgment motion which had been entered in favor of defendants, Janice and Daniel Pinkham, Gina’s sister and brother-in-law, on Gina’s petition to invalidate two amendments to a revocable trust (Prob. Code, 17200), for a declaration that defendants predeceased the decedent (§259, subd. (a)), for imposition of a constructive trust, and for damages. The trial court found that six of the eight causes of action alleged in the petition were barred by the applicable statutes of limitation, and the remaining causes of action are barred by principles of collateral estoppel.

Ultimately, Gina should have acted earlier as she simply waited too long as there was no dispute that Gina knew or should have known of the facts giving rise to the causes of action no later than August 2006, yet for some reason she delayed in filing the underlying petition until March 2010, after Josephine’s death.

Section 17200, subdivision (a), allows a trustee or beneficiary of a trust to petition the court concerning the trust’s internal affairs except as provided in section 15800. “Section 15800 states in pertinent part that during the time that a trust is revocable and the person holding the power to revoke the trust is competent: [¶] (a) The person holding the power to revoke, and not the beneficiary, has the rights afforded beneficiaries under this division. [¶] (b) The duties of the trustee are owed to the person holding the power to revoke.” The limitation placed on the rights of a beneficiary by section 15800 is consistent with the principle that [p]roperty transferred into a revocable inter vivos trust is considered the property of the settlor for the settlor’s lifetime,and thus, the beneficiaries interest in that property is merely potential and can evaporate in a moment at the whim of the [settlor]. (Estate of Giraldin (2012) 55 Cal.4th 1058, 1065-1066.)

Under § 17200 and §15800 a beneficiary lacks standing to challenge a trust so long as the rust is revocable and the person holding the power to revoke the trust is competent. In this case Gina petitioned the trial court in 2005 to confirm her appointment as an acting co-trustee based on Josephine’s alleged incompetency and defendants alleged undue influence over her. The allegation of Josephine’s incompetency took this case outside the terms of § 15800. The introductory clause of subdivision (a) has the effect of giving the right to petition concerning the internal affairs of a revocable living trust to the settlor (or other person holding the power to revoke) instead of the beneficiaries during the time that the settlor (or other person holding the power to revoke) is competent. When the settlor or donee lacks the requisite mental capacity different rules and Probate Code Subsections apply. The Appelate Court determined that nothing in Probate Code Section §17200 or §15800 precluded Gina from bringing the underlying action prior to Josephine’ s death. That she would have had the burden of proving Josephine’ s incompetence to establish her standing to pursue those claims does not excuse her delay.

The Court also determined that Gina’s failure to bring the action until after Josephine had passed away was necessarily prejudicial where, as here, each and every cause of action set forth in the underlying petition centered on Josephine — her mental capacity, defendant’s influence over her, and her understanding of the Fourth and Fifth Amendments and her estate. (See Bono v. Clark (2002) 103 Cal.App.4th 1409, 1420 [the death of an important witness may constitute prejudice]; Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 296 [same].)

At Ginzburg & Bronshteyn we are dedicated to providing efficient, effective, and affordable solutions to clients involved in trust and estate disputes, as well as other types of family law issues. We serve clients in Los Angeles, Orange County, Ventura County, and throughout Southern and Northern California. Our attorneys are renowned for producing high quality work and working diligently to achieve our client’s goals. Over the years we have developed a reputation for effective representation in complex and sophisticated matters. Contact us by calling (310) 914-3222 in Los angeles, or (818) 787-1011 in Westlake Village, or by using our online contact form.

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A family’s trust dispute got new life when the California Supreme Court reversed an an appellate court ruling, and determined that a group of contingent beneficiaries did, as a matter of law, have standing to sue the trustee of a family trust for breaching his duties by making a large, risky investment in a company that the trustee co-owned. In deciding Estate of Giraldin, the court concluded that, under California law, because the trustee’s actions could harm the contingent beneficiaries and contravene the wishes of the deceased trustor, they had standing to sue.

In 2001, William Giraldin began considering investing $4 million, roughly 2/3 of his wealth, in a technological start-up company created by Patrick Giraldin, his son. Patrick’s twin, Tim, was also a partial owner. Soon thereafter, Bill created a new revocable trust, which essentially replaced the previous revocable trust he established in 1997, naming all of his children as contingent beneficiaries. In one key difference between the trusts, however, Tim, not Bill, served as trustee of the trust. Bill ultimately decided to make the investment, with the funds coming from the trust.

gavel_bw.jpgThe start-up proved unsuccessful and, by the time Bill died in May 2005, his investment was largely worthless. Four of Tim’s half-siblings sued him, claiming he violated his fiduciary duties to the trust’s beneficiaries. The suit claimed that Tim’s mismanagement deprived Bill’s seven other legal children of the benefit of the trust.

The trial court ruled in favor of the four children. The court concluded that Tim acted to serve his interests, and those of the start-up, at the peril of his father and the trust.

The California Court of Appeal reversed. The court determined that Cal. Prob. Code 15800 made clear that, during Bill’s lifetime, Tim’s duties were to his father alone, not his siblings (as trust beneficiaries). During’s Bill’s lifetime, the Court of Appeal concluded, Tim’s siblings were akin to heirs named in a will, possessing no rights until Bill died and the trust became irrevocable. Thus, the siblings lacked standing to sue for his pre-May 2005 conduct as trustee.

The California Supreme Court disagreed, however. The high court agreed that the siblings could not sue based on alleged financial harm they suffered during Bill’s lifetime, and could not sue while Bill was alive, but concluded that they could assert a claim after Bill’s death, based upon harm to Bill caused by Tim’s actions during Bill’s lifetime. “Because a trustee’s breach of the fiduciary duty owed to the settlor can substantially harm the beneficiaries by reducing the trust’s value against the settlor’s wishes, we conclude the beneficiaries do have standing to sue for a breach of that duty after the settlor has died,” the court wrote.

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conflict-.jpgA “no contest” clause is an item inserted into many wills and/or trusts to reduce the likelihood that a beneficiary will mount a court challenge to the document. The California legislature modified the statute governing no contest clauses in recent years, attempting to simply the law regarding these provisions. In the process, however, the state’s new statute creates some potential traps for the unwary beneficiary.

Under California law in effect before 2010, will or trust contests were a high-stakes, all-or-nothing proposition. For example, if a woman had a will that left her estate equally to her son and daughter but, shortly before her death and during a visit from her daughter, she created a new will, with a no contest provision, leaving 75% of her assets to the daughter, and 25% to the son, then the son would face a risky dilemma if he contested the new will. If he won, the first will would govern, and he would receive one-half of his mother’s estate; lose, and the no contest clause from the second will would take effect and he would receive nothing.

Finding the penalty of total forfeiture excessively punitive, the legislature changed the law, effective 2010. The new law states that forfeiture clauses are generally not enforceable against challengers if they had probable cause for bringing the action.

Beneficiaries should remain mindful, though, that there are indirect ways to trigger a forfeiture clause, some of which are not necessarily intuitive. In a 2002 case, Estate of Gonzalez, a group of siblings offered their father’s 1992 will for probate, which contained a no contest provision. A fourth sibling, Jorge Gonzalez, submitted for probate a 1998 will. The court concluded that the 1998 will was the result of Jorge’s undue influence, that Jorge knew the will was not valid and, by offering it for probate, he effectively challenged his father’s first will, and did so without probable cause. As a result, the no contest clause within the 1992 will was enforceable and Jorge received nothing from his father’s estate.

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dollar_cube_gift_sjpg11680.jpgA California appellate court upheld the right of the children of a man’s ex-wife to receive the distributions promised to them in the man’s will and trust. In Estate of Lira, the court rejected a daughter’s argument that her father’s ex-wife’s children were disqualified from inheriting, ruling that the ex-wife’s family was related to the man when he executed his estate plan documents and, therefore, exempt from disqualification.

Oligario Lira married Mary Terrones in 1968. Lira had three children from a prior marriage, and his wife had six. Early in 2008, the wife filed for divorce. Eleven months later, with the divorce still pending, Oligario executed a will and a trust. The documents named Oligario’s three children, as well as three of Mary’s sons, as beneficiaries of his estate, and named Mary’s son, Robert Terrones, personal representative of his will and trustee of his trust. One of Mary’s grandsons, Glenn Terrones, was an attorney and prepared the documents for Oligario. The court granted the divorce early in 2010, and Oligario died five months later.

Lira’s daughter, Mary Ratcliff, petitioned for probate of her father’s estate, stating that her father died intestate, and requesting that the court appoint her to administer the estate. Two months later, Robert filed his own petition, producing the will and asking that the court name him as executor. Lira’s daughter then argued that the law disqualified the Terrones sons from receiving anything under the will or the trust because they were related to the attorney who drafted the documents. Robert countered by contending that, because he and his brothers were related to Oligario when he signed the documents, they were exempt from disqualification.

A trial court, and the California Court of Appeal, agreed with Robert. While Section 21350 of the Probate Code, which the daughter cited, generally bars anyone who is “related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of, the person who drafted the instrument” from receiving a distribution under that document, Section 21351 carves an exemption for persons related to the transferor by blood or marriage.

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money.jpgA now-deceased man’s estate planning oversight yielded a dispute that will now be decided by the U.S. Supreme Court. The case of Hillman v. Maretta pits the man’s ex-wife, whom he named, and never replaced, as the death beneficiary on a life insurance policy, and the man’s current wife, who claimed that the ex-wife lost her claim to the money when she and the man divorced.

In 1996, Warren Hillman named Judy Maretta, his wife, as the primary beneficiary on his Federal Employees’ Group Life Insurance (FEGLI) policy. Two years later, the couple divorced. Hillman married his subsequent wife, Jacqueline, in 2002. Warren and Jacqueline remained married until Warren died in 2008. However, Warren never updated his insurance policy to remove Judy and name a new beneficiary.

Jacqueline filed a claim for the policy benefit, which was nearly $125,000. Judy also filed a claim for the benefit. The money went to the ex-wife, as she remained the named beneficiary under the policy. Jacqueline sued, arguing that, under Virginia law, Warren and Judy’s divorce automatically revoked the beneficiary designation naming Judy. Judy contended, and the Virginia Supreme Court agreed, that the Virginia statute did not control here. The federal statutes governing FEGLI expressly state that the order of precedence for receiving a death benefit gives first priority to “the beneficiary or beneficiaries designated by the employee,” (5 USC 8705(a)) and also that the “provisions of any contract under this chapter which relate to the nature or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any law of any State or political subdivision thereof… to the extent that the law or regulation is inconsistent with the contractual provisions” (5 USC 8709(d)(1).) The Virginia court determined that these federal statutes clearly pre-empted Virginia law and mandated awarding the funds to Judy.

The U.S. Supreme Court agreed to take the case as a split had emerged over the question, with the Virginia and Alabama high courts, along with the federal 7th Circuit and 11th Circuit appellate courts, ruling that FEGLI’s governing statutes pre-empted state law, but the high courts in Indiana and Mississippi concluding that the federal statutes regarding FEGLI did not pre-empt state law.

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gavel.jpgA judge recently approved the sale of the home of former Playboy Playmate Anna Nicole Smith. The proceeds from the sale will go to the late model’s six-year-old daughter, Dannielynn. Many may remember Anna Nicole Smith for her marriage to the late J. Howard Marshall, an oil industry magnate.

According to a local news article, the home sold for $1.3 million, despite being worth approximately $1.8 million at the time of Smith’s death in 2007. The buyer is reportedly Rouzbeh Zoka, trustee of the Rouzbeh Zoka 2012 revocable trust.

Howard K. Stern, Smith’s former lawyer and now executor of her estate, reportedly stated that the sale of the home was “to the advantage of the estate and in the best interest of the interested persons.” The “interested persons” in this case is Smith’s daughter, Dannielynn.

California estate and probate law is on its face relatively straightforward, but can become very complex very quickly. When a person dies, his or her real and personal property form an estate. The estate includes any income, investments, real estate, and possessions of the person who died (known as the “decedent”). The decedent before dying or in a will may name someone–either a person or an entity, such as a bank or charity–to serve as the executor of the estate. In this case, Smith had apparently named her attorney Howard K. Stern as the executor of her estate. The executor is charged with managing the estate’s liabilities and distributing the estate’s assets to the named beneficiaries (in this case, Smith’s daughter). The primary responsibility of distributing the proceeds of the sale of Smith’s home will fall on Stern as executor of her estate.

It can become more complex when there are disputes over the decedent’s intent. For example, when a person dies, they might have named only some, but not all of his or her children in a will. Most likely, the unnamed children would contest the validity of the will, and estate litigation may ensue to determine whether the decedent intended to omit certain children or whether the omission was unintentional. This is but one example of a dispute that can arise in the execution of an estate plan. If you or someone you know is dealing with a dispute over the administration or execution of trust or estate in California, you should contact an experienced trusts and estates litigation attorney to ensure your interests are represented.

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875413_balance sxchu website.jpgImagine a scenario where a parent passes away with four children and $400,000 in assets. The parent created a will stating that each child will inherit one-fourth of his estate. That sounds simple enough, right? Unfortunately, just such a scenario often turns into a long legal fight between siblings. Even in cases of modest wealth, relationships that become strained over an inheritance battle rarely recover.

Although a will can be a useful estate planning tool, it also has many shortcomings. A will is essentially a list of instructions regarding how a deceased person’s property should be distributed. A will generally has little value until an estate enters the probate process. Once an estate has entered probate, a judge will determine how assets are distributed using the will as a guide. Unfortunately, the probate process can be lengthy and expensive. Additionally, private information will likely become public during probate proceedings.

In order to avoid probate, many people set up a revocable trust, a tool that can enable you to transfer ownership of assets without going through a frequently lengthy probate process. Normally, when someone creates a revocable trust, a provision in the document provides that all of the individual’s assets are transferred into the trust upon death. The owner of a revocable trust will also choose a trustee who will manage any assets placed in the trust. A well-planned trust document will provide for possible contingencies and leave little ambiguity that may lead to later disagreements. Although litigation may still arise even after a revocable trust is created, the likelihood of conflict between heirs is lessened.

Another possible legal battle waiting to happen in many families stems from an individual’s unexpected disability or incapacitation. Although older folks tend to worry more frequently about who will make decisions for them in the event of a stroke or other illness, disability from an unexpected accident or other cause is a real risk for many young people. Because of this, everyone should create a living will that outlines what sort of medical treatment to provide in the event of incapacitation and choose a healthcare proxy who will make medical decisions on their behalf. By creating such documents, an individual may have the ability to keep loved ones from battling over their best interests before a judge.

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1317230_dollar_sign sxchu username 7rains.jpgA recent decision by a Riverside County Superior Court judge may affect other California estate litigation cases where the decedent passed away in 2010. That was a unique year, as the federal government failed to levy an estate tax on any assets passed on by deceased loved ones. When estate planning documents are written in California, a portion of a person’s assets equal to the current estate tax exemption will usually be transferred into a bypass trust. The bypass trust is often set up for the benefit of a couple’s children or other heirs. The remaining, taxable estate is then normally placed into a marital trust for the benefit of a surviving spouse. By placing assets into a marital trust, estate taxes are deferred until the surviving spouse dies. Under this plan, however, all of a decedent’s assets would have passed directly into a bypass trust in California in the year 2010.

In the current case, Eileen and Leonard Tweten signed estate planning documents in 2008 that outlined how the couple’s $100 million in assets would be transferred following their death. In 2010, almost two weeks prior to Eileen’s passing, the couple amended their estate plan in order to ensure Eileen’s half of the couple’s wealth would transfer to the marital trust for the benefit of Leonard rather than the bypass trust as previously arranged. Following Eileen’s death, two of the couple’s three children challenged the amendment in court and argued their mother intended for her half of the couple’s assets to pass immediately to them. The children also argued their father exercised undue influence over their mother while she was essentially on her death bed.

Earlier this month, a Riverside County Superior Court judge tentatively ruled in favor of 85-year-old Leonard, holding that the assets would transfer to the marital trust until his death. According to the judge, Leonard will enjoy the income and benefits from the assets until his death. Following Leonard’s death, the assets that were placed into the trust by Eileen will then pass to the couple’s children. Because Eileen passed away in 2010, the sum placed in the marital trust will not be subject to an estate tax regardless of when Leonard dies.

Despite the California judge’s ruling, Leonard Tweten’s relationship with his children and grandchildren is reportedly now deeply fractured. The Tweten case demonstrates why it is important for everyone, especially families with a large net worth, to reconsider their estate plan on a regular basis. Because estate tax and other laws often change from year to year, it is a good idea to consult with an estate planning attorney every year.

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