CA Trust, Estate & Probate Litigation

CA Trust, Estate & Probate Litigation

Undue Influence: Convincing a Person NOT To Act

Posted in Capacity & Undue Influence, Trust Contests, Undue Influence, Videos, Will Contests

Can you unduly influence someone NOT to take action?-2

Can you unduly influence someone NOT to take an action?  In nearly all Trust and Will disputes, an undue influence claim is brought to overturn a Trust or Will that was executed while the elder was unduly influenced.  But not every Trust and Will case turns on action, sometimes inaction can be just as damaging.

For example, sometimes parents get mad at their children (sometimes you ask?  Okay it happens all the time).  And to punish the child, a parent will rush to the lawyer’s office and amend the Trust or Will to reduce that child’s share or disinherit them altogether.

A few years go by, the parent and child make amends, and the parent wants to change the Trust and Will again to return the child to his full share of the estate.  But then, another child gets wind of this intent and tries to prevent it.  Maybe the other children had no problem with this one “trouble maker” getting booted out of the estate and thereby increasing everyone else’s share.

Undue influence is the use of severe pressure that causes the elder to replace his or her own intent with that of the wrongdoer.  Influence (of the undue variety) is not illegal.  Everyone is influenced every day by the people around them.  But undue influence is more sinister in that is supplants the intent of the elder completely.

Undue influence can be used to cause a person to act, or refrain from acting, in a way that overcomes the person’s free will.  (See Welfare and Institutions Code section 15610.70).

As a result, where a parent is kept from changing a Trust to add a disinherited child back into the estate, undue influence could be used to overcome the resulting distribution.

It is not just what a parent does, but what a parent does not do, that could form the basis of a Trust or Will lawsuit.

Where Do You…Go To Sue? Do You Know Where to Sue Your California Trustee?

Posted in Litigation, Trustee Breach of Trust, Trustee Removal, Videos

Where in the World do I file my Lawsuit?

Where do you sue your Trustee?  If you want to sue a Trustee in California, there are two issues you need to consider: (1) jurisdiction, and (2) venue. Jurisdiction is the big question—can this Trustee be sued in California? Venue is the smaller question—where in California must this Trustee be sued?

Jurisdiction — The Big Question

Under Probate Code section 17300, any person who accepts trusteeship of a Trust having its principal place of administration in California submits personally to the jurisdiction of the California courts. In other words, if you choose to become Trustee of a Trust that is being administered in California at the time you take over, then you agree to come to court in California if there is ever a problem in the future.

That is a pretty broad standard. But it gets broader still under Probate Code section 17004, which allows the court to exercise jurisdiction under any basis that can be used for civil lawsuits under Code of Civil Procedure section 410.10. Section 410.10 is California’s so-called Long Arm Statute that allows jurisdiction where people have sufficient minimum contacts with this state. This includes concepts like “in-rem” jurisdiction that allows California to hear cases involving California real property in this state. In short, if you are Trustee of a California Trust or a Trust that has California real property, pack your toothbrush because you’re coming to California if you are ever sued.

Venue — The Small Question

Once jurisdiction is established, you then have to consider where to sue—that’s a matter of venue. Under Probate Code section 17005, the proper county in which to sue a Trustee is where the place of Trust administration is located. The place of administration is where the Trustee resides or where they do business. If you have more than one Trustee, then it is where either of the two Trustees reside or do business. If there is no Trustee, then venue is proper where any assets of the Trust are located. This standard is different from probate estates—where the proper venue is where the decedent resided at the time of death. For Trusts, you go where the Trustee is in order to file suit. If the Trustee is out of state, then follow the Trust assets for filing suit.

We seem to be seeing more instances of people moving out of state after accepting to act as Trustee of a California Trust. Now you know that just because the Trustee is no longer in California, California courts may still be the correct jurisdiction and venue in which to file a lawsuit.

How To Handle Bad Trustees: Obtaining Trust Documents

Posted in Trustee Breach of Trust, Trustees & Beneficiaries, Videos

Trust

You will never know for certain what your rights are under a California Trust or a California estate without first seeing the Trust or Will documents.  But how do you obtain those documents when a Trustee refuses to provide them to you?  In this video, partner Stewart Albertson describes the process of obtaining Trust and Will documents.

Must a California Trustee Report Financial Elder Abuse?

Posted in Abuse & Fraud, Elder Abuse, Videos

Must a Trustee Report Elder Abuse?

 

There are certain categories of people who are required by law to report any suspected elder abuse. That includes both physical elder abuse, and financial elder abuse. Under California Welfare and Institutions Code section 15630, any private or public facility that takes on the care and custody (meaning housing) of an elder (elder is defined as anyone aged 65 or older) is a “mandatory reporter”—meaning they must report any suspected physical or financial elder abuse.

Additionally, any financial institution such as a bank or credit union is a mandatory reporter for suspected financial elder abuse. While not every financial institution is good at exercising this requirement, many have become far more sophisticated in spotting and reporting suspected financial elder abuse.

Trustees of private Trusts on the other hand are not mandatory reporters. And since most Trusts created by people during life are private Trust (meaning revocable, living Trusts), most Trustee are not under a legal duty to report any type of physical or financial elder abuse.

But even if a legal duty does not attach to a Trustee, there is a strong argument that a Trustee is under a moral obligation to report elder abuse. And nearly anyone can make a complaint to the Adult Protective Services in the county where the elder is located when suspected elder abuse is present.  The Trustee also may have the right to bring a civil Financial Elder Abuse claim under the Welfare and Institutions Code, which can include a restraining order to protect the interests (and physical well-being) of the elder.

Often financial elder abuse is present when you least suspect it.  Most abusers don’t broadcast their wrongs.  Thus, any suspected elder abuse should be reported and acted upon as quickly as possible.

How to Handle Bad Trustees–Tangible Personal Property

Posted in Litigation, Trustee Breach of Trust, Uncategorized, Videos

Where's My Share of Mom's Stuff???

Fairly often California Trust and Will lawsuits come down to the tangible personal property–things like photos, family heirlooms, and antiques.  But once one party takes off with these items how do you get them back?  Or how do you force the Trustee to give you the personal items you deserve?  In this video, partner Keith Davidson describes the process of forcing distribution of tangible personal property.

Now You See It, Now You Don’t: Can assets be transferred to a new Trustee without telling the old Trustee?

Posted in Trustee Removal, Trustees & Beneficiaries, Videos

Does the Trustee Have to Know???

 

Can a new Trust be created and assets transferred without telling the Trustee?

Once a Trust has assets titled in the name of the Trustee, that named Trustee becomes the legal owner of the assets. The beneficial owner of the assets is whoever is named as beneficiary. In the case of revocable trust (also called living trusts), the Settlors are also the beneficiaries. Settlors are often the Trustees too, but there are instances when a different person or Trust company is named as Trustee.

Since the Trustee is the legal owner of Trust assets, the Trustee technically is the one who has to transfer assets out of the Trust. But what should happen, and what does happen, can be two different things.

We have often seen assets taken out of a Trust by the Trust Settlors without telling a Trustee. Those assets are then transferred to a new Trust naming a new Trustee. This can occur because (1) the Trust allows the Settlor to do so, (2) the assets are not held in the Trust to begin with, or (3) the financial institution simply allows the Settlor to make the transfer.

Technically speaking, most Trusts require that a Trust revocation be served on a Trustee. And removing assets from a Trust is the equivalent to revoking the Trusts as to those assets. As for a distribution of assets from the Trust, that is usually done by the actions of the Trustee.

So is there anything wrong with a Settlor taking assets out of a revocable Trust? Generally, no there is not. Most Settlors retain the right to revoke the Trust. Taking assets out of the Trust, even if not done with technical correctness, is “no harm, no foul.”

That does not apply, however, if only one Settlor takes assets belonging to both Settlors (such as community property). That can be a problem. Or where a Settlor takes assets from a part of a revocable Trust that has become irrevocable due to the death of one spouse. That is also a problem. But absent a special problem, the act of taking assets out of a revocable Trust is perfectly acceptable.

Do California Estate Plans Really Protect You When You need Them To?

Posted in Litigation, Planning, Videos

Do Estate Plans Really Protect You From

 

Do estate plans really protect you when you need them to? Yes and no.

In a perfect world, an estate plan is all you need to provide for your care and well-being when you lose the capacity or ability to care for your own finances. And for some people, this works great because they have loving (and non-manipulative) family members who all get along and agree on the correct course to take.

And then there’s the other side of the coin, where an estate plan does not work so well because family members do not agree. Or worse, a family member is manipulative or making decisions and changing documents to protect his or her own financial interests rather than caring for the elder’s well-being.

While things like revocable Trusts, durable powers of attorneys, and health care directives work great when all is well, they are not as useful when someone is taking advantage of an elder. In fact, an abuser often will have new documents signed that give them the power to control the health or finances of an elder.

When confronted with disaster, the only way to protect an elder is to file for conservatorship.  A conservator is a court appointed person who steps into the elder’s shoes and becomes the only person with the legal authority to make health and finance decisions on behalf of an elder.

But wait, isn’t an estate plan created to avoid conservatorships? Yes, but when someone is being manipulative or abusive, the court process is the only way to protect an elder. Once a conservator is appointed, he or she can take steps to protect the elder, provide proper medical and health services, and look over the finances. Also, in the context of a conservatorship action, the Court can invalidate any health care directives or durable powers of attorney that harm the elder.

Is estate planning still worthwhile? Yes, absolutely because without a plan you will most definitely end up in court. And a majority of estate plans work well to avoid court intervention. But when estate plans go awry, the court system is the only answer to protect an elder from abuse.

How Accurate Must a California Trust Accounting Have to Be?

Posted in Trust Administration, Trustees & Beneficiaries, Videos

Finding Balance...

How accurate does a Trust accounting have to be in order to be approved by the Court? I always say that every accounting balances, it is just a matter of finding the right information. Still, it can be frustrating to put together a year or two (or three or four) of information and not have the accounting balance.

A Trust accounting is a very unique thing. It is unlike any other type of accounting (and very much unlike a corporate accounting). But Trust accountings are also easy to understand—in theory.

Trust Accountings start with the charges—those are the list of things that come into the Trustee’s possession (what the Trustee is charged with possessing). The first charge includes all the assets on hand when the accounting begins. Then you add in all income received and any gains on the sale of assets. Each of these items has a separate schedule showing the detailed information. You then total all these amounts and that gives you the total charges.

Next you look at the total credits. Credits start with disbursements, amounts that are paid out by the Trustee for bills and expenses; then distributions to beneficiaries and losses on sale. The final piece is a list of the assets on hand at the end of the accounting period. Again, each of these items has a corresponding schedule that details the information. You add up the total for each of these items and that gives you the total credits.

For a Trust accounting to balance the charges must equal the credits. The summary of charges and credits typically looks like this:

Charges

Assets on Hand at Beginning of Accounting (Schedule A)……………… $1,000,000

Income Received (Schedule B)…………………………………………………………………………….. $100,000

Gains of Sale (Schedule C)…………………………………………………………………………………………. $50,000

Total Charges……………………………………………………………. $1,150,000

Credits

Disbursements (Schedule D)…………………………………………………………………………………… $75,000

Distributions (Schedule E)……………………………………………………………………………………… $500,000

Losses of Sale (Schedule F)……………………………………………………………………………………….. $25,000

Assets on Hand at End of Accounting (Schedule G)……………………………….. $550,000

Total Credits…………………………………………………………….. $1,150,000

As long as the total charges match the total credits, the accounting balances. If those two numbers are off, then there may be a problem.

But how far off does an accounting have to be in order to have a real problem? Typically small discrepancies will be allowed. For example, a $40 or $50 discrepancy is not enough of a problem to warrant any type of court order. Of course, it really depends on the size of the estate and the judge who is passing judgment on the accounting.

There is always an answer somewhere as to why any accounting is off. Accountings are just a collection of numbers. Usually the problem lies in a missing bank statement that has some bank charges or fees listed on them. Once all the information is located, it can be properly entered and the accounting should balance.

It is not a hard job to prepare an accounting, it just takes a lot of time, patience, and perseverance. Good luck!

Being Threatened by the Trustee? The empty threat of no-contest clauses

Posted in Beneficiary, Litigation, Trustee Breach of Trust, Trustee Removal, Videos

Are You Being Threatened with a Trust

Nearly everyday I hear from a Trust or Will beneficiary that they have been threatened with the No-Contest clause by their Trustee or Executor.  In today’s legal world, no-contest clauses are rarely enforceable.  And yet, the threat is made.  Learn what you have to fear, if anything, about your Trust or Will no-contest clause.

Just the Fees Please: How Much Should Your California Trustee Charge?

Posted in Trustee Breach of Trust, Trustees & Beneficiaries, Videos

Most Trusts allow Trustees to pay themselves “reasonable” fees for the work they do, but what is reasonable?  That depends on the type of Trustee you have.  In this video, Keith Davidson discusses some of the issues relating to reasonable Trustee fees that can be charged by your Trustee.

Who Owns Your Money, You or Your Child? California Joint Tenancy Account Rules

Posted in Litigation, Videos

In California, as in every other state, you can create a joint tenancy account with anyone you like, including a friend, caretake, or child.  And most people know that a joint account automatically transfers to the surviving joint account holder at death.  What you may not know, is who really is viewed as owning the account monies during your lifetime.  In this video, Keith Davidson describes who owns your California joint tenancy bank account.

Can You Escape a California No-Contest Clause?…Probably…

Posted in Litigation, No Contest Clauses, Videos

Under California law, no-cotest clauses in California Trust and Wills have been substantially limited in their applicability.  In most cases they simply will not apply.  But even when a no-contest clause does apply, it may still be possible to escape its affects.  In this video, Stewart Albertson discusses when you can escape the harsh affects of a no-contest clause.

Promises, Promises…Can You Enforce a Promise To Leave You Property In a California Will?

Posted in Litigation, Videos

Ever have someone make you a promise?  How about a promise to leave you property after they die if only you take care of them while they are alive?  That can be a good deal or a terrible deal when the person making the promise fails to ever create a Will naming you as a beneficiary.  In this video, Stewart Albertson discusses whether or not you can enforce a promise to leave you property in a California Will.

The Four Factors For California Financial Elder Abuse

Posted in Abuse & Fraud, Elder Abuse, Videos

Financial elder abuse in California is become more commonplace with our aging population.  In California, there are laws that are meant to protect the physical and financial well being of seniors.  In this video, Stewart Albertson discusses the four basic facts required under California law to bring a financial elder abuse claim.

Body Snatchers: Who Controls Your Remains Under California Law?

Posted in Litigation, Videos

Ever wonder who has the legal right to control your remains after you die?  I have never thought about it either, but it came to light last year with Casey Kasem’s body went missing.  Where did it go and who has the right to control it?  Believe it or not, there are rules for that.  In this video, Keith Davidson describes the rules on who controls your remains.

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