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What is A California Trust and Will Litigation Lawyer?

Posted by Keith A. Davidson on May 09, 2012

It takes knowledge and experience in two district areas, trust and wills and litigation/trial, to make a California trust and will litigation lawyer complete.

Deadline to Sue: a discussion of the statutes of limitation in California Trust and Will cases.

Posted by Keith A. Davidson on May 09, 2012

Like nearly every legal claim or cause of action, Trust and Will lawsuits carry various limitation periods within which to file suit. The complexity lies in how the various limitations work, when they apply, and how they overlap in this area.

The Empty Will: Why a California Will or Trust May Not Control Your Assets after Death.

Posted by Keith A. Davidson on April 06, 2012

You may think that a California Will or Trust controls the distribution of all your assets after your death. You may be surprised to learn just how meaningless a Will or Trust can be depending on how your assets are titled.

When a person is alive, his assets are viewed as belonging to him. When that same person dies, however, his assets suddenly become separated into distinct legal entities that may have nothing to do with one another. And each legal entity has its own set of rules and procedures governing its distribution.

For example, let’s say you have one living parent (we’ll call her Mom), she has three children and she owns the following assets:

House—A home titled in the name of her revocable Trust, which lists all three children as equal beneficiaries,
Bank Accounts—A checking and savings account at Citibank titled jointly in her name and her oldest son’s name (we’ll call him Adam),
Brokerage Account—A brokerage account titled jointly with her youngest son’s name (we’ll call him Bob),
Retirement Accounts—An IRA and 401(k) with all three of her children designated as equal beneficiaries, and
Life Insurance—that names her only daughter as the sole beneficiary (we’ll call her Cindy).

While Mom is alive she can do whatever she likes with her assets. She can open and close accounts, she can move money into or out of her revocable Trust, she can even name different beneficiaries for her life insurance policies. It’s all just one big pot.

But when Mom dies, things change. All of the various assets become essentially locked into whatever state they were in prior to Mom’s death. And each entity has its own, independent distribution scheme.

That means, for example, that the assets will pass in different ways:

House—passes to the three kids equally under the terms of Mom’s revocable Trust,
Bank Accounts—pass to Adam ONLY, because he is the surviving joint tenant (neither the revocable trust nor any Will control this asset after Mom’s death),
Brokerage Accounts—passes to Bob ONLY as the surviving joint tenant,
Retirement Accounts—pass under the beneficiary designations to the three children equally, and
Life Insurance—passes to Cindy ONLY as the sole named beneficiary.

Even if Mom had a Will, the Will would not control any of these assets because none of the assets are passing under Mom’s estate. They all bypass the estate because the assets are held in so many different probate-avoidance vehicles. In fact, even the revocable trust controls very little of this estate—the House only. Since the other assets were not titled in the name of the Trust, none of them pass in accordance with the Trust terms.

Mom may have thought that ALL of her assets would be divided equally among her children because that’s what her revocable Trust stated. But Mom couldn’t be more wrong. When setting up accounts in a certain form—such as joint tenancy or assets with designated beneficiaries (like life insurance and 401(k) accounts)—those forms control the assets after death. In other words, the title to an asset has significant legal meaning after death. Yet so many people create things like joint tenancy accounts without fully appreciating the consequences of their actions.

Further, if you are going to contest how an asset passes, then you better know which legal entity you need to go after. If you sue the Trust based on an asset that does not belong to the Trust, then you’re going to waste a lot of time and money going down a deadend road.

Ninth Circuit Rules in Favor of Admitting Statements of a Decedent at Trial

Posted by Keith A. Davidson on March 09, 2012

Objection, hearsay! We hear that term “hearsay” all the time—in the movies, on T.V., and in real life court proceedings. The idea behind the “hearsay” rule, which prevents certain statements and documents from being admitted as evidence, is that not everything people say is reliable or even truthful (imagine that). As straightforward as that rule may sound, it’s much harder to apply—and is the bane of all law students taking an evidence course for the first time.

Judge Noonan, writing for the United States Ninth Circuit Court of Appeals, just clarified an issue on hearsay, the so-called state of mind exception, in a case titled Wagner v. County of Maricopa (a case that originated in Phoenix, AZ).

In Wagner, the Plaintiff wanted to introduce various statements made by the decedent (prior to death obviously) about his impression of being imprisoned for a few days. The decedent was diagnosed with various mental issues, including being disoriented, paranoid and psychotic. He had wandered away from home and was arrested after being mistaken for a burglar and then resisting arrest. In jail, he was placed in isolation, after psychological examination, and then forced to change from civilian clothes to jail-issue clothes, which included wearing pink underwear (?). The decedent resisted the clothes change and was forcibly undressed, and then dressed in jail garb. Due to his psychological condition, decedent thought that he was going to be raped by the officers and was traumatized by the experience.

Decedent’s mother bailed him out of prison after a few days and was later involved in a minor car accident with decedent in her car. Decedent was told that the police would be called to the scene of the accident. The decedent, in a state of panic, then ran for 4 or 5 miles away from the car accident where he collapsed and died of a heart attack.

The decedent’s family sued and wanted to have decedent’s sister testify to the statements decedent made about his impression of being imprisoned and being forced to change clothes. The statements were meant to establish the decedent’s state-of-mind about being imprisoned. The statements themselves, that decedent was being raped by the officers, was obviously false and not meant to prove they were true.

The trial court excluded the testimony on the theory that the statements were hearsay and could not be used to prove the truth of what was said. The Ninth Circuit Court of Appeals reversed, saying that statements such as these made by the decedent, were not hearsay. Why? Because they are not used to prove they are true—no one was asserting the truth of the statements. Rather the statements were being used to establish the decedent’s state of mind at that time. And statements that would otherwise be hearsay are admissible into evidence when they go to the state of mind of a decedent.

This state-of-mind ruling provides a great exception to the hearsay rule, especially in the world of Trust and Will litigation, where a decedent’s state of mind is almost always a central issue to California Trust and Will contests. As long as you aren’t using the decedent’s statements to prove what they said was truthful, only that is establishes their state-of-mind and explains their actions, then the exception applies.

The Lives Behind the Words: How California Trust and Will Lawsuits Affect our lives.

Posted by Keith A. Davidson on December 05, 2011

We should never forget when reading a written decision by any Court that there are people—real, live, breathing people—behind the words laid down in the Court’s opinion. I was recently reminded of this fact when I received a call from Tom Giraldin, son of William A. Giraldin, whose estate I discussed in an earlier blog post.

The Estate of William A. Giraldin has been the source of many year’s worth of litigation over various Trust issues (discuss in more detail in my previous article). And in that previous article, I said that a son of William Giraldin, specifically Tim, was sued by “his siblings.” Well I had that slightly wrong. Tim was not sued by all of his siblings, but actually sued by four (namely, Patricia Gray, Christine Giraldin, Mike Giraldin and Philip Giraldin) of the Giraldin’s seven older children—my mistake.

But that’s not the interesting part. The more interesting part is talking to Tom Giraldin and getting an inside look into the people and family relationships that underlie the Appellate Court’s opinion in Estate of Giraldin. What type of person was William A. Giraldin (a strong business man), how did the facts come about (years of living), and did the Appellate Court get it right (yes, so says Tom)?

If you think about it, a lot of actions have to occur before a California Trust or Will case is heard and decided by the Appellate Court. People have to live their lives, things have to happen in those lives, someone dies, people get upset and sue, the lawsuit takes over five (5) years to wind its way through the Courts, a party loses, decides to appeal, and then we get the Appellate Court opinion—coming at the end of what may be over a decade (or more) of actions in the making (both inside and outside of Court). Whew! Makes me tired just thinking about it.

But the lives lived and the things that occur during those lives are the substance of these cases. And while the Appellate Court may provide us with a pretty cut-and-dry rendition of the facts, life is never so cut and dry. And the way in which each party, each child, sees those facts is also very different—which is why the lawsuit is filed in the first place.

So the next time you read about the facts of a case in the Courts, in the newpaper, on the web, or in someone’s blog; its interesting to keep in mind that these are people we are reading about and they may have plenty of other facts behind the case that never come to light.

The Settlor Made Me Do It: California Court Clarifies When Beneficiaries Can Sue Trustees...And When They Cannot

Posted by Keith A. Davidson on October 18, 2011

California Trust and Will litigation is like building a puzzle. There are a lot of moving parts in most cases and trying to figure out how and when to put the parts together can be confusing.

The Fourth District Court of Appeals recently set Trust litigators straight on how and when a Trustee can be sued by Trust beneficiaries, in a case titled “Estate of William A. Giraldin” (2011, No. G041811). Associate Justice William W. Bedsworth authored the opinion that holds beneficiaries have no standing to sue a Trustee for alleged breaches of fiduciary duty that occurred while the Settlor (which is the Trust creator) is still alive and had the power to revoke the Trust. My first reaction: What???

In Estate of Giraldin, the decedent, William Giraldin had created a revocable, living trust. Although he was the “Settlor”, because he created the Trust, he appointed one of his five sons, Tim, as the successor Trustee. The Trust was revocable by William Giraldin during his lifetime and, therefore, under Probate Code Section 15800, the Trustee, while acting as Trustee during William’s lifetime, only owed duties to William—not the named Trust beneficiaries (Williams’ other four sons).. In other words, the Probate Code specifically states that the Trustee does not owe any fiduciary duties to the children of William (who are “contingent” beneficiaries so long as William is alive) until after William’s death.

The problem in Estate of Giraldin revolved around a large investment William made, over $4 million, into a start-up company owned, in part, by his son Tim. After William created the Trust, and made his investment in Tim’s company, William stepped down as Trustee and allowed Tim to act as Trustee of his Trust. But Tim was acting at William’s direction.

As might be expected, the start-up company William invested $4 million in did not survive, and William’s wealth plummeted as a result. After William’s death, the other siblings were not happy that William invested so much of his money into Tim’s company only to have it disappear (I would imagine that had Tim’s company been successful, the other siblings would have been quite happy). So Tim’s siblings sued Tim for breach of Trust claiming, among other things, that Tim never should have allowed William to invest in the company and lose his $4 million.

The Trial court agreed with Tim’s siblings and awarded a surcharge against Tim in excess of $4 million (yikes!). Tim naturally chose to appeal that ruling and Justice Bedsworth gives us new law with a ground-breaking result for Trust litigation issues—he reversed the surcharge. Tim owes nothing!

Before Estate of Giraldin, it was generally assumed that while beneficiaries could not sue a Trustee while the Settlor was alive, they could do so after the Settlor’s death. The beneficiary could receive both an accounting of actions that took place before the Settlor’s death and even ask for a surcharge for any breach of Trust that occurred during that time. This was based on Evangelho vs. Presoto (1998) 67 Cal. Appl. 4^th 615. Not so fast, says Justice Bedsworth. He overrules the concepts set down in Evangelho.

Instead, the Court states that when a Trust is revocable by a Settlor, the only duty a Trustee owes is to that Settlor. Therefore, there is no basis, and even no standing(!), for beneficiaries to seek an accounting of Trust actions or assert a breach of Trust for actions taken during that time. What about breaches that the Trustee incurs, but the Settlor could not assert due to the ill-health or lack of capacity of the Settlor? The Court says that can be taken up by the Settlor’ successor’s-in-interest, which usually means his Executor or surviving heirs. But that type of action must assert wrongs against the Settlor, which did not occur in this case.

In fact, in the Estate of Giraldin matter, the only wrongs asserted by the beneficiaries is that they should have had an extra $4 million to split among themselves. Everyone agreed that the Settlor wanted to invest in Tim’s company and had the capacity to do so. They merely asserted that Tim should have stopped William from investing how he liked. The Court disagreed, saying that during the Settlor’s lifetime, since the Settlor has the power to revoke the trust, the Trustee must do as the Settlor directs. This is true even if the investing decisions are foolish.

Had the beneficiaries been asserting wrongs committed as against William, then it may have been a different story. Or if the investing had occurred after William died, when the Trustee owned a duty to his siblings as vested trust beneficiaries, there would have been a different outcome. But under these facts, the Trustee gets a free-pass because he based his actions on the directions of the Settlor.

Giraldin is a well-reasoned and well-written opinion and makes sense on the facts of that case. But the downside of a case like this is that the new argument for every Trustee acting while the Settlor is alive is going to be “the Settlor made me do it”—no matter whether that is true or not. It will then be up to the beneficiaries to show whether that is true.

Due Process Can Feel Unduly Burdensome: Why does our Court system take so long to do...anything!

Posted by Keith A. Davidson on October 17, 2011

One of the hardest things to understand for people who do not have experience with our judicial system is the amount of time it takes to resolve most matters in court. Why the wait? In part, it’s due to the backlog of cases in most courtrooms and the lack of funding these days to hire the necessary amount of judges and other court staff to process these cases.

But there is also a built-in delay in California Trust, Will, Probate and Estate cases, a concept known as due process. “Due process of law” is the term for how we must administer cases in our system of justice. Due process requires a certain procedure to take place before a court makes a binding decision in your case. In other words, the court cannot simply look at the documents that are initially filed by each side and make a snap decision. This is true even where the facts seem pretty clear-cut and the law directs a certain action based on those facts; or even where the opposing party’s objections are baseless or frivolous.

Before any binding decision is made by the court, the court must first conduct a trial where each side is given a fair chance to bring whatever relevant evidence they have to substantiate their case. Once the evidence (both documents and testimony) is presented at trial, then the court can weigh the evidence and make a decision. Note that in California, nearly all Trust, Will, Probate and Estate cases are decided by a judge alone, as opposed to a jury as used in all other type of civil cases and all criminal cases.

A typical life-cycle of a Trust and Will case begins with the filing of an initial petition (Trust and Will matters usually use “petitions” as opposed to “complaints,” but they are the same in that each is an initial document that kick-starts the lawsuit). Once that petition is filed, it is set for an initial hearing. The initial hearing IS NOT a trial. It is simply the first chance the court has to review the petition and determine if everything is ready to proceed—we call this “being at issue.” If notice of the petition is not properly served or the petition is defective in some other respect, then the petition is not “at issue” and the initial hearing will be continued to give the petitioning party time to correct the defects.

Each petition filed with the Court in California Trust and Will matters is reviewed by a probate examiner (which is either a lawyer or paralegal employed by the Court) to determine if the petition is properly prepared from a procedural standpoint. They don’t test the validity or weight of the facts that are stated in the petition, they just make sure all the technical requirements are met for a properly filed petition.

Once the Petition is “at issue,” the opposing party has the right to show-up at the hearing and make a verbal objection to the petition (see California Probate Code Section 1043(b)). Once made, the opposing party is given a certain amount of time in which to file written objections. Once all objections have been filed, then the Court will determine how much time is required by the parties to conduct discovery—which includes issuing subpoenas, requesting documents and questions from opposing parties, and conducting depositions. There may be disputes regarding discovery along the way, which must be sorted out with various motions to the Court. Once the parties have completed discovery (or are close to it), then the Court will finally set a trial date.

It is only at trial that the Court receives evidence and then weighs the evidence to make a binding decision in the case.

As you can see the process, from start to finish, can easily take anywhere from 1 to 5 years depending on the issues encountered, the number of discovery and other fights along the way, and the amount of evidence that must be collected. All in the name of “due process.”

The Beneficiary's Burden: The burden of being a beneficiary of California Wills and Trusts

Posted by Keith A. Davidson on September 16, 2011

I have posted many articles on the wrongful acts of bad trustees and I am just getting started on that subject. There is always more to write about.

I can't help but notice that there is a general lack of understanding about the burden of beneficiaries as well. Legally speaking, beneficiaries of California Wills and Trusts do not have any legal obligations or duties to the Will or Trust estate. However, beneficiaries do have a duty that they must undertake to enforce their rights--the duty to take action.

A beneficiary of a California Trust or Will has rights. And an heir of a decedent who is disinherited may have rights, depending on the circumstances. But those rights lie dormant until you choose to make the effort to enforce them. Therefore, every beneficiary has a duty to take action to enforce their rights. No one is going to step in and make your life easy by enforcing your rights for you. You can take the Trust or Will matter to court, but the court's role is supposed to be as a neutral trier of fact and law, it's not there to help you assert your rights--that's your job.

Of course, undertaking to enforce your rights is not easy. It takes time, money and an emotional toll as well. But when you're dealing with a bad trustee or a bad situation, you have little choice but to stand up for yourself.

Many times I hear beneficiaries complain how having this burden to enforce their rights is hard, unfair, and it simply should not be this way. Trustees should do the right thing in the first place or siblings should be fair with trust distributions. Of courses all of those complaints are true and well founded, I agree. But complaining gets you nowhere. You alone have the burden to stand up and enforce your rights. The sooner you as a beneficiary accept this fact, the sooner you can move on and try to get something done.

California Trust and Will Beneficiaries have a Right to Information

Posted by Keith A. Davidson on August 31, 2011

Every beneficiary of a California Trust and Will has a basic right to information. They have a right to see the Trust or Will document(s), they have a right to asset information, they have a right to full disclosure. Yet not every Trustee or Executor complies with requests for information. This video describes a beneficiary's basic right to information. For those viewing this blog by email subscription, you can click on the title for a link to the video.

Joint Tenancy Bank Accounts: The pitfalls of using joint tenancy in California estate planning

Posted by Keith A. Davidson on August 26, 2011

Joint tenants beware. Placing assets in joint tenancy presents a number of pitfalls in Califonria estate planning. We discuss a few of those pitfalls in this video. For those viewing this blog by email subscription, you can click on the title for a link to the video.

Undue Influence: How undue Influence is used to overturn a California Trust or Will

Posted by Keith A. Davidson on August 25, 2011

See Video Below:

Stewart R. Albertson discusses how undue influence is used to overturn a California Will or Trust. There are two ways to prove undue influence in California, either directly or by shifting the burden of proof onto the opposing party. Stewart describes the basic concepts. For those viewing this blog by email subscription, you can click on the title for a link to the video.

Love Thy Lawyer: How to Find the Right Fit in the Lawyer-Client Relationship

Posted by Keith A. Davidson on August 23, 2011

As a client, you want help. As a lawyer, I want to help you. So why doesn't every lawyer-client relationship result in a perfect fit? As with any human relationship, there are a few things that can stand in the way of a good match. For lawyer-client relationships, I consider the following topics of primary importance:

Expectations: Lawyers have a certain expectation as to how the client should act, and clients have their expectations on how lawyers should behave. As with any relationship, having appropriate expectations is key for all concerned.

Have you ever been involved in a lawsuit before? Many people are shocked and surprised at how our legal system actually operates. It is slightly less efficient than Congress. A lawsuit is like the old roach motel commercial, your suit can go in, but it can't get out. Well, eventually it can, but not in any reasonable amount of time.

So lawyers need to help clients have proper expectations about their case. As my partner, Stewart Albertson likes to say: “A lawsuit is a marathon, not a sprint.” Get ready to run for a long while. But lawyers aren't always good at setting expectations. We are familiar with the slow legal system so a case that takes two to three years to resolve is normal to us; whereas an uninitiated client may find that amount of time outrageous.

And clients, in turn, need to face up to the reality that the wheels of justice turn slowly. Your case is no exception. While the advent of email, smart phones, and Facebook may let you operate in many ways at light speed, our judicial system doesn't work that way.

The bottom line: be a wary traveler. Know what you’re getting yourself into before going down the lawsuit path. Not every lawsuit can be avoided, but believing that a lawsuit will be resolved quickly is an unreasonable expectation—no matter how outstanding your lawyer is.

Personality: Not every lawyer is right for every client (and vice versa). You need to feel that your lawyer has your best interest at heart and will take your cause on as his or her own. Different people have different ways of showing their dedication to your cause. And different people have different ways to give and receive information.

For example, a client who is reserved and logical may not appreciate a lawyer who is loud and energetic. Or a gregarious, creative client may not have patience with a quiet, deliberate attorney. Some personality types fit together better than others. This doesn't mean that the lawyer or client is bad, it's just a personality fit, it either works or it doesn't.

The bottom line: Finding the right personality fit, someone you are comfortable with is vitally important. You’re stuck with your case for the long haul, so you should be comfortable with your lawyer.

Follow-through: Lawyers don't have the best reputations when it comes to consistent follow-through on cases. Most lawyers have more than one case in their office, so it can be difficult to give individual attention to each case, especially since multiple cases can flare up at the same time. But it is the lawyer’s job to manage his or her case load so that each client receives appropriate attention at the appropriate time.

Clients should know that cases ebb and flow (they have busy times and slow times). Most cases don’t need constant action every day or even every week.

Every person, however, has different expectations as to the amount of attention they or their case should receive, and every lawyer has a different capacity to be attentive.

The bottom line: Discuss the amount of follow-through you expect from your lawyer and have him or her explain how he works to keep clients informed on their case.

Results: Wouldn’t it be great if you could hire a lawyer for a guaranteed win in your case? That would be one expensive lawyer (even more expensive than the typical lawyer). The truth is you can never hire an attorney to guarantee a win on your case. And any lawyer who says he or she never lost a case (especially never lost a trial) hasn’t tried very many cases—if any at all.

You hire a lawyer to provide strong, experienced counsel on your case and many times, that leads to a win. But that's out of your control and out of the lawyers control as well. Judges and juries make decisions. The lawyer’s job is to fight hard, write well, and argue persuasively for your cause. If you receive this type of representation, then you have a good result.

The bottom line: You don't pay for results, you pay for thorough preparation, a good fight and hard work. We all hope that equals a good result and oftentimes it does.

The better fit you have with your lawyer, the better chance you have to be successful in your case because you and your lawyer’s definition of success will be aligned.

Excessive Conservation: Conservatorship Cases in California Can be Costly to all Concerned

Posted by Keith A. Davidson on August 16, 2011

Conservatorship is the Court process for taking control of an adult's finances and personal care in California when there is no other planning in place—such as a Trust or Will. (Some states refer to it as "guardianship," but in California guardianship only applies to minors--conservatorship is for adults).

Conservatorships are supposed to “conserve” a person’s estate (as in “to keep in a safe or sound state…especially to avoid wasteful or destructive use of…” as defined by Merriam Webster). Yet, even a routine conservatorship proceeding (one that is not contested by family members) is expensive to initiate, time-consuming to create, and burdensome to maintain. It hurts less to simply hit yourself in the head with a hammer than to go through a conservatorship proceeding.

But when a conservatorship proceeding is contested by dueling family members wanting to be conservator, now the pain really begins. And the costs (both financially and emotionally) are downright excessive.

Conservatorship proceedings start with a petition filed by a family member reciting why the proposed “conservatee” (the person in need of help) can no longer manage his or her personal and financial decisions. Then there are loads of other documents that go with the initial petition.

If other family members disagree with the conservatorship filing, or want a different person appointed as conservator, then they must make an objection to the original conservatorship petition and then file their own petition for conservatorship (referred to as a "competing" petition). The Court appoints an attorney to represent the proposed conservatee, and the matter is ultimately set for trial and tried before the court to determine whose petition will win.

Sounds easy enough right? But what this little overview fails to convey is the amount of time, money, and emotional toll that goes into a lawsuit of this nature. Conservatorship cases are difficult to begin with because there is usually an elder adult caught in the middle; as opposed to Trust and Will contests, where the dispute revolves around a pile of assets. The effort to conserve a person’s estate often results in the excessive waste of that estate instead.

Of course, the Court acts as a safeguard to the estate and will refuse to reimburse the parties for their litigation fees and costs if they do not directly benefit the conservatorship estate (or even if they do benefit the estate, the reimbursement will be refused if the estate cannot afford it).

The end result is that no good deed goes unpunished. The parties bear the costs, the estate bears some too, and the family feels bruised, wounded and far worse from the wear of conservatorship litigation. The alternative is to have some plans in place (such as a California Trust and related powers of attorney) so that conservatorship can be avoided. All too often good planning is neglected and the penalty of such neglect is facing the excesses of conservatorship in California.

Death Can Be Fatal: How the Death of a Defendant Can be Fatal to a Lawsuit Too

Posted by Keith A. Davidson on July 26, 2011

Death is final. And when a person who is a party to a lawsuit dies, death can be final for the opposing party too unless they take action quickly.

Dead people cannot be sued by law. Therefore, any claims against a decedent (including those already in progress by way of an existing lawsuit) must be brought in the decedent's estate. By estate, I am referring to a probate estate. This is true even where a decedent died with everything he owns held in a Trust. Why the probate estate? Because that is where all claims against a decedent must start.

And there are two very important deadlines you must remember when trying to preserve a claim against a decedent. First, is the overall one-year statute of limitations under CCP 366.2. This harsh rule states that any claims against a decedent must be brought within a year of the decedent's death or they are forever barred. This is true even though the statute of limitations would have been longer had the person survived. For example, the statute of limitations for breach of a written contract is 4 years, but if the breaching party dies, then the statute is cut down to a one year limit. And this rule applies regardless of whether you knew the person died or not!

Second, if a decedent dies and his heirs/beneficiaries open a probate estate, then any creditor has only 4 months from the date an executor is officially appointed to file a claim in probate.

The lifecycle of a claim

When there is a claim against a decedent, or an ongoing lawsuit against a deceased defendant, the first step any creditor must take is to file a "Creditor's Claim" in the decedent's probate estate.

If a probate estate is not opened (and this happens often where the decedent died with a trust because no probate is necessary to transfer his assets), then the creditor must file to open a probate (creditors have the right to do this as interested parties of the decedent's estate). Once the estate is opened, then the claim is filed with the estate.

The estate representative (i.e., the Executor of Administrator) then has to either accept the claim, and thereby agree to pay it, or reject the claim. After 30 days the creditor can deem the claim rejected. Once a claim is rejected, the creditor must then file a lawsuit against the estate to force the estate to pay the claim. If a lawsuit is already pending against a dead defendant, then once the claim is rejected by his estate the estate representative must be substituted in as the party to the lawsuit. The lawsuit can then continue.

If a judgment is achieved as part of the lawsuit, then that judgment can be enforced against the estate. If there are no assets in the estate, then the creditor can go after the decedent’s trust.

Sound confusing? It is, and the procedural requirements are strictly enforced so any mistake along the way can be fatal to the creditor in attempting to collect a debt. So beware, any death of a party to a lawsuit, or any death of a debtor, can be fatal to your claim too.

Influencing the Court to Find for Undue Influence in California

Posted by Stewart R. Albertson on July 20, 2011

I’ve blogged before about using the concept of undue influence to overturn a California Will or Trust. But knowing the definition of undue influence is only the first step. To make the concept of undue influence useful, you have to know how to prove the existence of undue influence in a Court of law. That can be trickier than it sounds. Let’s walk though the primary options for proving undue influence in California:

Under California law, undue influence consists of:

An Example of Undue Influence:

It is usually easy to spot undue influence. For example, Jane has three children, namely, John, Jerry, and Jack. Jane is living with John at the end of her life, and relies on John for her daily living needs. John does not like his brothers Jerry and Jack. Six weeks before Jane dies, John drives his mother to an attorney to change her California Will or Trust, which disinherits Jerry and Jack. Now John goes from getting one-third of his mother’s Will or Trust to getting 100 percent. The question: Did John exercise undue influence over Jane? Most likely, yes. But how do you prove undue influence under California law?

How to Prove Undue Influence under California Law:

There are two primary ways to prove undue influence under California law—by either (i) shifting the burden of proof to John, in the example above, so he then has to prove an absence of undue influence, or (ii) by Jerry or Jack proving directly that John exercised undue influence over their mother. If at all possible, it is best to shift the burden to John to prove he did not exercise undue influence over Jane because it can be very difficult to prove the absence of something. If you don’t have facts that shift the burden of proof to John, then Jerry and Jack will have the burden of proving the existence of undue influence directly.

How to Shift the Burden of Proof in an Undue Influence Case:

How do you shift the burden of proof to John so that he carries the burden to prove he did not exercise undue influence over Jane? Under California law there is a presumption of undue influence that arises if you can establish three facts:

Confidential Relationship: Jerry and Jack must prove that John had a “confidential relationship” with Jane, which can consist of John being Jane’s trustee, or agent under a power of attorney, or conservator, or perhaps, simply being Jane’s son.
Active Participation: John must have “actively participated” in the preparation or execution of the Will or Trust.
Undue Benefit: John must receive an “undue benefit” by way of the new Will or Trust.

You can prove each of these facts where John (i) is the Executor or Trustee of Jane’s Will or Trust, (ii) arranged to have an attorney draft the new Will or Trust for Jane to sign, and (iii) where John’s interest in the Jane’s Will or Trust increases from one-third to a higher amount.

Once these facts are proven, there is a presumption that John exercised undue influence over Jane causing her to create the new Will or Trust; and the burden of proof shifts to John to prove the absence of undue influence, which is not easy for John to do under this fact scenario. Essentially John has to prove a negative—i.e. that undue influence did not occur.

How to Prove Undue Influence Directly:

If you can’t prove facts shifting the burden of proof to John, you must prove undue influence directly. Circumstantial evidence is enough to prove undue influence. Here are the most likely facts you need to prove undue influence directly:

Disinheriting a child: Provisions that are unnatural, cutting off from any substantial bequests the natural objections of the decedent’s bounty. When Jane disinherits Jerry and Jack, that is disinheriting her children, an unnatural act, which can indicate undue influence.

Contradicting decedent’s former estate plan: Dispositions at variance with the decedent’s intentions, expressed before the document’s execution. If Jane had a previous Will or Trust that treated her children equally, but a new Will or Trust (or Amendment) contradicts the former Will or Trust (or Amendment), this can add to the conclusion that Jane was unduly influenced.

Opportunity to control decedent: Relations existing between the chief beneficiaries and the decedent that afforded the former an opportunity to control the testamentary act. If Jane relied on John for her daily living needs, this can add to the conclusion that Jane was unduly influenced.

Poor mental and physical condition: A testator whose mental and physical conditions are such as to permit a subversion of her freedom of will; and if there is evidence the testator had a weakened state of mind it is easier to demonstrate the pressure from another overcame the testator’s free will.

Sudden negative shift in attitude: Under California law, courts may infer that Jane’s sudden negative shift in attitude toward Jerry and Jack was caused by John’s poisoning Jane’s mind because the court can find no other rational explanation.

Decedent’s advanced age: A Will or Trust creator of advanced age at the time a document is signed adds to the conclusion the testator was unduly influenced.

History of mental deficits: A Will or Trust creator with a history of mental deficits adds to the conclusion the testator was unduly influenced. California Probate code section 811 outlines the likely areas of mental deficits.

History of Dementia or Alzheimer’s disease: A Will or Trust creator with a history of Dementia or Alzheimer’s Disease adds to the conclusion the testator was unduly influenced.

Testator under conservatorship: A Will or Trust creator that is under a court ordered conservatorship adds to the conclusion the testator was unduly influenced.

The more of these facts you can establish, the easier it is to prove undue influence directly.

There you have it—a big picture view of how to prove undue influence cases under California law. In future blog posts, I will treat in further detail (i) the burden shift for undue influence cases, and (ii) proving undue influence directly.

No-Contest Clauses Do Not Apply to Challenging a Trustee's (or Executor's) Actions

Posted by Keith A. Davidson on July 15, 2011

The omnipresent no-contest clause (originally called in terrorum clauses--as in to terrify one's beneficiaries) is meant to prevent lawsuits. The idea being that if a beneficiary contests a California Will or Trust containing the clause, then that beneficiary is entirely disinherited and loses his gift under the document (see our previous blog post on how no contest clauses work and their practical application).

But does a no contest clause apply to a beneficiary's challenge of a Trustee's actions as Trustee (i.e., challenging the management of the Trust)? The simple answer is no. As a matter of public policy, California law specifically precludes the application of no contest clause to the actions of fiduciaries, including Trustees and Executors (or Administrators) of Wills. In fact, the law wants beneficiaries to have the right to question fiduciaries and to contest a fiduciary's actions in managing a Trust or administering a Will, provided the contest is not frivolous.

What does this mean for beneficiaries? Question your Trustee or Executor all you want. Nothing in the Trust or Will can stop a California beneficiary from asking about the management, investment, distributions, bookkeeping, professional fees, etc., of a Trust or Will.

Unfortunately, many fiduciaries, especially when they are individuals, do not understand that the no-contest clause does not apply to questioning their actions and they will threaten a beneficiary with the no contest clause as a way to prevent questioning. But this is an empty threat.

What does this mean for fiduciaries? You must be completely transparent in your actions as Trustee or Executor. Everything you do is subject to review and questioning. Worse yet, it is the Trustee's duty to prove they acted reasonably (see our prior blog post on trustees duty).

Being a fiduciary can be a thankless job because the fiduciary has all the burdens and responsibilities and very few benefits.

Expect the Unexpected...And other clichés that ring true in trust and will lawsuits.

Posted by Keith A. Davidson on July 01, 2011

If you only knew what can happen in the life of a typical trust or will lawsuit—or civil lawsuit for that matter. Bismark famously said that “Laws are like sausages, it is better not to see them being made.” Add litigation to that list.

But then again, every case is different. Where some cases seem to proceed to trial quickly (by “quickly” I mean within a year or two), others dwell in the Court process for years and then seem to fade away or go to trial. Either way, the financial and emotional costs of these cases can be substantial.

To provide some perspective on the life-cycle of a litigation matter, we have developed a “What to Expect” series of handouts for our clients and we have shared them on this blog before. I now want to share them again because it is critically important for people to understand what to expect in litigation (see handouts here).

Litigation moves at a snail’s pace. It has many twists and turns and unexpected surprises along the way. And the Court gives out what seems like an endless number of continuances when requested by one of the parties. Of course, our system is built around the notion of Due Process of Law. Due process is meant to ensure that everyone is treated equally and fairly and that each party has an opportunity to be heard. But it can be frustrating to experience due process—and expensive too.

As my partner is fond of saying “Litigation is a marathon, not a sprint.” A marathon requires a slow steady pace designed to allow a runner to maintain a jog over long distances; as opposed to a quick sprint where you run as fast as you can for a short distance. However, in litigation, where matters are stressful and potentially costly, most people would like to end the matter as quickly as possible. I understand that sentiment and desire completely. Unfortunately, I cannot end a case any sooner than the process will allow.

And so we trod along. But we do so with our client’s purpose in mind. We are here to help and to fight for justice and fairness. As long as that is our goal, we have a great chance at reaching it…eventually.

Which Will Wins the Race? The Documents Required For a Proper Will Contest Lawsuit.

Posted by Keith A. Davidson on June 22, 2011

There is an old saying in the law that goes “first in time, first in right.” For Wills, the opposite is true—last in time, last in right. Typically the last valid Will wins. But what if the last Will is not valid? That could allow an earlier Will to apply instead. And it is this dispute—last Will versus second-to-last Will—that is at the heart of nearly every Will contest lawsuit.

Of course, a Will cannot be overturned just because the heirs or beneficiaries don’t like the Will terms. There has to be some legal basis to invalidate the Will (see our earlier blog post on invalidating a Will). Once a legal basis is determined, it’s time to get down to business; actually filing the Will contest.

A Will contest lawsuit is unique in that it requires a few steps, and a few different filings, before the lawsuit is properly “before the Court” (which just means all the correct paperwork is filed so the Court can handle the matter). Let’s walk through the steps for a properly filed Will contest lawsuit:

Step 1 – Petition for Probate: You have to open a probate estate. In California, a Will is not is not a Will until it is admitted to probate. The procedure of admitting a Will to probate is the Court’s method for proving that the Will is valid. Before being admitted to probate, a Will is simply evidence of a potentially valid Will. Once admitted to probate, a Will is, by law, a valid Will.

So whether you are trying to admit the last Will or an earlier Will, you must ask the Court to admit the Will to probate and that requires a Petition for Letters Testamentary (also referred to as a Petition for Probate). Under the Petition for Probate, you recite the facts as they pertain to the Will you want admitted and then you must sign the Petition and file it with the Court.

What if the opposing party has already filed their own Petition for Probate? No problem, you file your own Petition for Probate as well (they are referred to as “competing petitions,” but you use the same form whether you’re filing first or second). It makes no difference who files first, as long as you file before the opposing Will is admitted to probate.

Step 2—The Objection. The next step is a separate filing called an objection to probate of Will as prescribed by Probate Code Section 8250. This is the actual Will contest filing where you explain why the other person’s Will is invalid and what legal basis (or bases) you are using to dislodge that Will. A Will contest objection under Section 8250 is unique under the Probate Code in that it is the only probate filing that requires the issuance of a summons (like the ones used for civil complaints). Both the objection and the summons must be personally served on everyone (and I mean everyone) mentioned in the Will you are trying to invalidate, along with all of the decedent’s heirs (if they are not otherwise mentioned in the contested Will).

Step 3—Prove your case. At trial, the proponent of the contested Will must first prove due execution of the Will (which means that it was properly executed as set forth under Section 6110). Once execution is established, it is then the contestant’s burden to prove any of the legal grounds to invalidate the Will, including lack of capacity, undue influence, fraud, duress, or revocation. Never forget what your burden is at trial because it will guide your actions in conducting discovery beforehand.

After taking the right steps, your Will contest is on its way through the Court system. Now the work really begins….

Stop! Or I'll File a Trust Contest...(Volume 1): How to freeze trust assets

Posted by Keith A. Davidson on June 08, 2011

One of the advantages of creating a revocable, living Trust is the ability of the successor Trustee to quickly and smoothly take control of the Trust assets after the Settlor (i.e., Trust creator) dies. But this can also be a burden to a beneficiary, or a disinherited heir, who intends to contest the Trust terms. It takes time to prepare, file, and have the Court hear a Trust contest. In the meantime, the Trustee of the Trust is typically free to go about her business managing, and even distributing, Trust assets to the named beneficiaries—an alarming prospect to a contesting beneficiary. The Trustee may even be able to empty the Trust of assets before the Trust contest is ever resolved.

Therefore, it is the contesting beneficiary’s duty to seek assistance from the Court to freeze the Trust assets, or at least put restraints on their transfer, pending the outcome of a Trust contest (many of the same methods also apply to Will contests, but a Will cannot be administered until after an Executor is appointed and the contest will prevent an Executor from being appointed—not so in Trust administrations).

What can a contesting beneficiary do in this situation?

In California, the rules of general civil procedure apply to Trust and Will cases. This allows a party to a Trust or Will matter to use civil discovery procedure, civil motions, and other forms of pre-judgment relief, such as Temporary Restraining Orders and Preliminary Injunctions (CCP 525 et seq.). Here are a few actions a party can take to preserve Trust assets:

1. Lien on Real Property– Notice of Pendency of Action (or “Lis Pendens”, I’ll refer to it as a lien in this post) is one of the easiest ways to secure real property pending the outcome of an underlying Trust and/or Will action. But there’s a catch. The underlying lawsuit must involve a Real Property Claim, which is defined as one that would affect title to, or the right to possession of, specific real property. See California CCP 405.4. In other words, the lawsuit must directly relate to who will possess title to the real property. Thus, suing a Trust that has real property may or may not be enough to establish a Real Property Claim.

For example, suing a Trustee for not managing rental property correctly is not a Real Property Claim because you would not be challenging who holds title, your just challenging the management of the real property by the Trustee. Whereas, suing a Trust for exclusion of a beneficiary who would have had a right to receive title to real property had the Trust not been improperly amended shortly before death would qualify as a Real Property Claim because it affects who ultimately will hold title to the subject real property.

The advantage of using a Lis Pendens lien is that it is easy to prepare and record. Once recorded it automatically secures the real property and prevents the property from being sold or refinanced until the lien is released. The disadvantage of using a lien is that if you file one without a Real Property Claim at issue in the underlying suit, then you can be held liable for the opposing party’s attorneys’ fees and costs incurred to set aside the lien. So this type of lien should only be used when there is a proper basis to do so.

2. TRO and Preliminary Injunctions. Trust and Will cases can be subject to Temporary Restraining Orders (TRO) and Preliminary Injunction to ensure that the Trust assets are not wasted. But just as in civil matters, TRO’s and injunctions are not easy to obtain from the Court. They are considered extraordinary remedies and you must establish (i) a likelihood of prevailing on your claim, and (ii) a right that cannot be adequately compensated by money damages. The classic example is real property, which is considered unique under the law.

However, it is possible, and I have had cases, where a TRO and injunction are ordered by the Court to ensure that a Trustee is not personally taking money from the Trust. There has to be proof that the Trustee is taking money, but with that proof it is a possibility to obtain an injunction that will protect Trust assets until the underlying contest is resolved.

My next post of this topic (Volume 2) will include: (1) Petition for Instructions and Blocked Accounts, (2) Ex Parte Petition to Suspend Trustee and (3) Trustee’s Bond.

Alleged Financial Elder Abuser Must Face the Music: Los Angeles County Superior Court Keeps Lawsuit Alive

Posted by Stewart R. Albertson on May 06, 2011

Trust and Will lawsuits often provide different paths to the same destination. My client, a trust beneficiary, recently filed a lawsuit against a trustee of a California trust for financial elder abuse, and at the same time sued for undue influence to set aside the Trust amendment created at the hands of the Trustee/Abuser. In this case the Trustee ended up with a significant portion of the Trust and my client was effectively disinherited.

The Trustee, hoping for an easy out, tried to convince the Court that the elder abuse claim should be dismissed summarily (called a demurrer) because the claim was based on a transfer by Trust, and in his opinion, the abuse of the elder did not actually occur until the trust creators died and their Trust became irrevocable (the “taking argument”). His claim was that the beneficiary cannot use the same undue influence facts to (1) overturn the Trust amendment, and (2) sue for financial elder abuse. In other words, he may have been an undue influencer for purposes of the Trust amendment, but not for purposes of financial elder abuse.

But California law disagrees. Specifically, there are three different ways in which financial abuse may be pleaded under the Elder Abuse Act found at Welfare and Institutions Code section 15610.30(a), which states a person is guilty of financial elder abuse if they take property of an elder for wrongful use, or with intent to defraud, or by way of undue influence. (Welf. & Inst. Code, § 15610.30, subdivisions (a)(1), (a)(2), and (a)(3).) Thus, the act of undue influence used to overturn a California Trust (or in this case a Trust amendment) can also be used to establish a claim for financial elder abuse. Further, the Elder Abuse Act defines a “taking” to include the receipt of assets by a “testamentary instrument”, which includes California trusts and wills. (Welf. & Inst. Code, § 15610.30(c).)

Does this mean my client would get double damages, one with the Trust set aside and another in the amount of the property taken? No. But it does mean my client can proceed on both claims and take full damages under either one. For example, the elder abuse statute allows for punitive damages and attorneys’ fee whereas the Trust set aside claim does not.

The trial court heard oral argument on the demurrer on May 5, 2011. After hearing oral argument, the trial court was persuaded that the financial elder abuse claim could go forward based on undue influence as it was properly pleaded in my client’s lawsuit, and was supported by the Elder Abuse Act.

The next time you see facts showing a “garden-variety” trust or will contest, think about whether those facts also support a claim based on financial elder abuse.

The Trust and Will Shell Game: The Who, What, When, Where, and Why of Contesting California Trusts and Wills

Posted by Keith A. Davidson on May 04, 2011

Trust and Will litigation is a bit of a shell game. You remember the shell game, where a pea is placed under one of three shells and then the shells are re-sorted as quickly as possible so as to lose track of which shell has the pea. The observer is then asked to pick the shell with the pea—it’s a 1 in 3 shot of getting it right.

The reason Trust and Will litigation is like a shell game is because so much depends on how assets are titled at death (see our earlier blog post on this issue). The Trusts and Wills are the shells and the assets are the peas.

For example, a decedent may die with a Trust, but if nothing is titled in the name of the Trust, then there may be nothing to contest regarding the Trust.

And a Will only controls what is in the estate, which means only those assets titled in the decedent’s name alone (this excludes property titled in joint tenancy, by beneficiary designation, or in the name of a trust). However, in most cases, people have “pour-over” Wills that pass all assets from their estate to their Trust. Thus, a Trust may not have any assets to begin with, but can obtain assets from a pour-over Will.

Sound confusing? It is. So where do you start when you want to contest a Trust and a Will (or is it a Trust or a Will, or just a Trust, or maybe just the Will…)?

Step One. You have to determine where the assets are located. Often, they are scattered all over the place, with some in a Trust, some in the decedent’s own name (so those are in the probate estate), and some passing by joint tenancy with right of survivorship (which pass outside the Will and the Trust).

Step Two. Once you have identified where the assets are located, you need to know what documents you are working with. Is there a Trust, what does it say, and when was it last amended? Is there a Will, what does it say? What about joint tenancy property?

Step Three. You have to decide what to attack first. Typically that would be the vehicle that has the assets. So if the assets are in the Trust, contest the Trust. If the assets are in the probate estate, contest the Will. (You'll have to open probate to contest a Will, if probate is not already opened.) If the assets are in joint tenancy, you have to file that lawsuit in the probate estate (see Probate Code Section 5302), but it will take clear and convincing evidence to dislodge the joint tenancy. Sometimes, you will want to attack all three at the same time if there is a chance that assets may pass from one vehicle to another (such as from a pour-over Will to a Trust). Other times, you will attack just one and save the other contests for later if the need arises.

The mistake you want to avoid is attacking a vehicle that has no assets and never will have any assets. So if an asset is passing by joint tenancy (which passes outside a Will and a Trust) and you want to attack that transfer (i.e. the joint tenancy transfer, such as a jointly held bank account), then you have to file a lawsuit in the probate estate and request that the joint tenancy asset be returned to the estate. If you are successful, then (and only then) the asset would pass by Will, if the Decedent had a Will, or by intestate succession if there is no Will. You most likely do NOT want to contest the Decedent’s Trust in this scenario because the Trust does not own the joint tenancy asset. In fact, the Trust has nothing to do with joint tenancy assets in most cases.

The bottom line is to map out the location of the assets and the documents you are contesting. Of course, there has to be a reasonable legal basis for the contest and you have to watch out for any no-contest clauses (see our earlier posts on no-contest clauses). But once the facts are mapped out, you can then plan your attack on the document that holds the asset(s).

Legal Lasagna: Building Your Case One Layer At A Time

Posted by Keith A. Davidson on April 29, 2011

In an earlier blog post, I shared a handout we give our clients so that they will know what to expect in their lawsuit. All lawsuits are different, but there is one thing you can count on in every lawsuit: uncertainty. A case can go from looking good, to looking bad, to looking good again all based on the facts and evidence discovered throughout the litigation process.

Thus, each case must be built, fact by fact, until the best case possible is assembled and rolled out for trial. It’s a bit like making lasagna, it can only be done one layer at a time.

For example, in a typical Trust or Will contest, there are some facts known to the parties at the outset, such as the general condition of the decedent. If they are challenging the Will or Trust based on a lack of capacity, they may know that the decedent suffered from dementia. But did the dementia cause a lack of capacity at the time the contested document was signed? This takes medical evidence and expert testimony to determine. Once the medical evidence is received it can change the case--for better or worse.

After every step of the discovery process (the process whereby we obtain facts and evidence) the view of a case can change. Yet each stage provides us with another opportunity to layer in more facts and legal positions regarding the case.

And so we build, layer by layer, until we have the best case possible to take to trial. Or the best case possible to take into a mediation for settlement purposes. Either way, it takes a process, some patience, and ever increasing facts and evidence to blend a case together for just the right mix needed to prevail.

What to Expect At Your Deposition and In Written Discovery

Posted by Keith A. Davidson on April 29, 2011

We have created various handouts for our clients to explain certain aspects of a lawsuit. In an earlier blog post I shared our handout describing the overall process of a lawsuit. We also have created handouts on what to expect at a deposition and what to expect in written discovery. We have decided to make these forms available to you as well by posting them on our website.

Again, these are not meant to provide an exhaustive listing of everything that occurs during the litigation process, but it does provide some basic information so that people who are not familiar with the legal system will have some idea of what they can expect.

Legal Lingerie: Fighting Over Personal Property In California Trusts and Wills

Posted by Keith A. Davidson on April 26, 2011

No one really wants to inherit their parents unmentionables after they die (at least I don't), but what about all the other personal items left behind? From jewelry, furniture and antiques, to china, silverware, dishes and momentos, everything is an object over which a fight can ensue between siblings.

The authority in the area of transferring personal items is a book, and now a website, called "Who Gets Grandma's Yellow Pie Plate." It is a great example of how family discord can erupt over the smallest of items. Of course, "smallest" in terms of value in a monetary sense, but not so small in terms of sentimental value-which is precisely why these fights can be so personal.

Exactly who is entitled to a decedent's personal items (referred to as “tangible personal property” in legal jargon) and how is that property passed out after death? Well there is a right way and a wrong way, and it’s hard to enforce the right way.

A few right ways.

Technically the property is supposed to be inventoried and then distributed according to the Trust or Will terms. If the Trust or Will provides for specific items to go to specific people, then that must occur. If not, then the beneficiaries can discuss who wants what and the Trustee or Executor must make a final decision in the event of a conflict. Any property left over is sold and the proceeds from sale split evenly among the beneficiaries.

Or better yet, the parent or grandparent can give an item of personal property before death. This is ideal because (1) it prevents any arguments relating to the parent's intent, and (2) it allows the parent or grandparent to enjoy the act of giving (and witness the excitement of receiving) the gift. It also ensures that the gift will be made.

The Wrong Way.

Imagine the decedent's heirs going through his or her house and randomly taking personal objects without any authorization or direction. They refuse to follow the terms of the Trust or Will and they fail to wait until a Trustee or Executor is in place to sort out the details. Once a Trustee is in place, it is too late, the property is gone and trying to recover it is nearly impossible.

The problem with the wrong way to pass personal items is that (1) it happens all the time, and (2) it’s hard to prevent. It really depends on the people involved. Will they wait to play by the rules or are they just going to do what they like? And the costs involved in trying to recover personal property is far too high to justify doing it in most cases.

At a minimum, a Trustee or Executor should try to secure the decedent's home as soon as possible and take possession of the personal items as quickly as possible. Of course, it’s not always so easy to know which personal items people will want. Sometimes it can be the least obvious item, such as a pie plate.

Capacity Lite--How Undue Influence Can Be Used To Overturn a California Will or Trust When Lack of Capacity Allegations Fall Short.

Posted by Keith A. Davidson on April 19, 2011

People influence others every day, and most types of influence simply persuades a person to make a certain decision--where to eat, what to buy, who to like, you get the idea.

Sometimes influence can get out of hand and become "undue." What separates normal influence from undue influence? Simply put, undue influence is coercion. It typically occurs when a person has a weakened mental state (such as with dementia or Alzheimer’s) and her intent is replaced with the intent of the undue influencer. In other words, the Will or Trust the decedent creates no longer represents her intent, it represents the intent of the wrongdoer. The wrongdoer is said to have “supplanted the intent” of the decedent (that term always makes me think of brainwashing—another good analogy).

The weakened mental state required to establish undue influence is not unlike the mental defect needed to prove lack of capacity. Yet, with undue influence, the various elements of capacity are not required. For example, capacity for the creation of a Will requires that a person knows (1) the nature and extent of their property, (2) their relationships to the persons who are to receive property under the Will, and (3) that they are making a Will. And a Will is presumed valid unless the person lacked capacity at the very moment they signed the Will. Thus, a person with dementia, who may have good days and bad days, could conceivably have capacity on the day of signing a Will and then lapse back into incapacity the next day.

When there is little or no medical evidence around the Will signing date, proving a lack of capacity at the time the Will was signed may be difficult. But proving undue influence is another matter because all we need is a weakness of mind, plus some facts showing that weakness was taken advantage of by the wrongdoer. Once established, it’s irrelevant whether a person had capacity when signing a Will. Instead, the question turns on whether the person’s intent is reflected in the Will. This is why I call undue influence “capacity lite.”

What’s more, with undue influence we have the ability at times to shift the burden of proof on to the opposing party (unlike capacity where the burden always remains on the person contesting the Will). And that is a huge advantage when trying to overturn a Will. How do we shift the burden? We must prove that (1) the wrongdoer was in a confidential relationship with the decedent (such as principal and agent, or caregiver, etc.), (2) the wrongdoer participated in the Will creation, and (3) the wrongdoer profited from his actions (i.e., he received something under the Will or Trust). Once established, the burden is passed on to the wrongdoer to prove that he did NOT engage in undue influence, which is very difficult to overcome.

In sum, undue influence can be a powerful weapon in trying to overturn a Will or Trust, when used properly. And it can give a person contesting a Will or Trust some hope when capacity appears hard to prove.

Marital Rights Without Marriage -- How Nonmarital Partners May Receive a Share of a Deceased Partner's Estate Based Upon an Oral Promise Before Death

Posted by Stewart R. Albertson on April 19, 2011

One of my first litigation cases was against attorney Thomas W. Dominick in San Bernardino County Probate Court. Tom is one of the best estate and trust litigators in California. To say the least, I was scared. The issue in that case revolved around whether my client had a right to his girlfriend’s real property after her death. She promised my client the property during her lifetime and he had spent money on the property, but nothing was in writing and the two were never legally married. I remember being frustrated that I could not find a legal doctrine to support my client’s claim after his girlfriend died. I was shocked that there appeared to be no real protection for long-term nonmarital partners after the death of the other partner. I ended up alleging several causes of action that were weak at best (i.e. oral promise to enforce trust in real property, quiet title, specific performance, constructive trust, and unjust enrichment—known generally as Marvin claims based on a case of the same name). Unfortunately, these claims must be brought within one year of the decedent’s date of death or they are forever time barred under the statute of limitations applied to decedents' estates. And, the girlfriend’s family waited over eight years to file a petition for probate, knowing all the while that my client continued to live in what he believed was his house (the eight year time-frame made most of my client’s claims moot).

But I had equity on my side as my client had lived with his girlfriend for almost 30 years and he had invested his own money into the home over the years. Thankfully, the case settled after Thomas and I worked out a settlement, on behalf of our respective clients, which allowed my client to occupy the home for his lifetime.

A recent Court decision would have made my job much easier in the above-referenced case. In McMackin v. Ehrheart (decided April 8, 2011) Presiding Justice Robert M. Mallano, writing for California’s Second Appellate District, Division One, discussed (as a matter of first impression) whether a Marvin claim based on a decedent’s promise to leave her nonmarital partner a life estate in real property requires the nonmarital partner to file a lawsuit within one year of her partners death, and if so, whether the doctrine of equitable estoppel can be applied to preclude assertion of the one year statute of limitations. The court concluded that the Marvin claim is governed by a one year statute of limitations, but that, depending on the circumstances of each case, the doctrine of equitable estoppel may be applied to preclude a party from asserting the one year statute of limitations.

The pertinent facts of McMackin established that nonmarital partners—Hugh and Patricia—lived together in Patricia’s home from 1987 to 2004. Hugh was never on title to Patricia’s home, but continued to occupy her home after her death. More than three years after Patricia’s death, her children filed a petition for probate, which would effectively kick Hugh out of the home leaving him with no interest in Patricia’s estate. In reply, Hugh filed a lawsuit alleging that Patricia had promised him a life estate in the home upon her death in consideration for 17 years of his “love, affection, care and companionship.” Hugh argued that the one year statute of limitations did not apply. Of course Patricia’s daughters argued that the limitation statute applied (as three years had passed). In response, Hugh argued that even if the one year statute of limitations applies, the doctrine of equitable estoppel precluded Patricia’s daughters from using it against him. The court of appeal agreed, stating the one year statute of limitation applies, but that equitable estoppel may preclude the daughters from raising it as a defense. The court of appeal then sent the case back to the trial court for determination of these issues.

Overall, McMackin is a great case to review if you run into nonmarital partner estate issues. Justice Mallano did a great job in articulating the legal analysis pertaining to Code of Civil Procedure section 366.3 and the doctrine of equitable estoppel. I think this case will be used as more people choose to live together rather than get married. Of course all of the Marvin claim messes can be avoided by proper estate planning (i.e. creating California trusts and wills).

What to Expect In Your California Trust, Will or Civil Lawsuit

Posted by Keith A. Davidson on April 13, 2011

My law partner is fond of saying that "A lawsuit is a marathon not a sprint." I like his quote because it sets the expections of what a client can expect to incur during the course of a lawsuit. It does not matter what type of suit it is, be it Trust, Will, Estate, Probate or Civil litigation, the general overview of what to expect is the same.

To give our clients a snapshot of the litigation process, we have prepared a memorandum of what clients can expect during the course of their lawsuit (What to Expect In Your Lawsuit.pdf). It does not answer every litigation question, but it provides a basic primer on the litigation process. We've decided to share that same memorandum here on our blog so everyone can see our basic primer on what to expect in your lawsuit.

Don't Let Defense Attorneys Direct Their Clients Not to Answer Questions at Deposition--Bring a Motion to Compel

Posted by Stewart R. Albertson on April 12, 2011

I’m still amazed when defense attorneys direct their clients not to answer my questions during a deposition where no privilege exists. In other words, the defense attorney simply assumes the role of judge and decides what questions their client will and will not answer. Of course, the defense attorney instructs their client not to answer any damaging questions, even where no privilege (i.e. attorney-client, etc.) applies.

When this happens in my depositions, I request the court reporter to mark the record in anticipation of bringing a motion to compel the deponent to answer my valid questions at a future deposition. For my motion to compel I rely primarily on Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006.

In Stewart, the defense attorney repeatedly directed his client not to answer questions at deposition on the ground that they were not calculated to lead to the discovery of admissible evidence. The plaintiff’s attorney, in response, filed a motion to compel further answers with the court. At the hearing, the judge remarked to the defense attorney, as follows:

So you’re the Mr. Wolfe that sat in the deposition and instructed the witness not to answer questions because you didn’t think they were relevant. Well that’s not your role. You are ordered not to instruct the witness not to answer a question during any deposition in this case unless the matter is privileged. The proper procedure is to adjourn the deposition and move for protective order. You don’t assume the role of judge and instruct the witness not to answer a question in a deposition. That is a huge no-no. (Stewart at p. 1101.)

The Court then ordered the defense attorney to pay sanctions to the plaintiff’s attorney in the amount of $2,400.

The defense attorney didn’t leave well enough alone. He appealed the trial court’s $2,400 sanction. The court of appeal quickly dispatched the defense attorney’s appeal holding that deponents are not to be prevented by their attorneys form answering a question unless it pertains to privileged matters or the deposing attorney’s conduct has reached a stage where suspension of the deposition is warranted. (Stewart at 1015.) The court of appeal affirmed the trial court’s ruling.

The next time any attorney orders their client not to answer a question at deposition where no privilege exists, point out the holding in Stewart on the record as a meet and confer, and then you’ll have a slam dunk motion to compel if the attorney continues to direct their client to not answer.

The Childish Balancing Act-How to Plan for Children in Your Trust.

Posted by Keith A. Davidson on April 08, 2011

Children are a big part of Trust planning, and a big part of Trust litigation (lawsuits) when the planning falls apart (or is not done properly to begin with). There are many factors that affect planning for children, including age, marital status, health, legal or creditor issues, and level of responsibility (or rather perceived level of responsibility by the parent).

Age Issues:

Age is easy to plan for in that a child’s trust can be created to hold assets until a certain age. Choosing the “certain age” is a highly personal question to answer. As a starting point, a child must be a legal adult to receive assets, which is at age 18 in California. And most people agree that ages 19, 20, and even 21 are too young for a child to receive anything substantial. In fact, research has shown that the Prefrontal Cortex-the part of the brain that controls reasoning and impulses-does not fully mature until age 25. So a scientific argument can be made that age 25 is a good minimum age to work with, but does it apply to every case? Sure, why not. If nothing else, age 25 is a good starting point. What about an age other than 25, like 30, 35, or 40? That’s where personal preference comes into the mix. Of course, it’s not an all or nothing proposition because a Trust could allow a portion of the assets to be distributed at age 25 (say ½ or 1/3), and then use other ages for the remaining distributions. You can be as creative as you like in setting the “certain age” for distributions.

Marital and Creditor Protection Issues:

Age is only one part of the equation because keeping assets in trust for a child also impacts marital property issues and creditor protection. By placing a child’s assets in trust it can (i) protect those assets from creditors, and (ii) help the assets retain their character as the child’s separate property (this applies in California, which is a community property state, but inherited assets are, by definition, separate property). So as long as the assets are in trust, they have some protection in case of creditors or divorce. This may be helpful if the child is in a high-risk profession, such as a doctor, lawyer, stuntman, dare devil, motor cross, etc. But the protection only lasts for as long as the Trust is in existence. If the trust provides for distribution at a certain age, such as 25, then the creditor protection ends at age 25. The trust could continue for the child’s entire lifetime if this is a concern. But you have to balance the inconveniences of the trust with the protection being provided.

Health Issues:

Children with health issues can face substantial costs for medical care in the future. A child’s trust can be created so that the child will qualify for government assistance, but have trust assets available for extraordinary expenses that add to the child’s comfort. Known as “protective”, “Medicaid”, or “Special Needs” trusts, these devices can be helpful for children in need. In this case, the trust would remain in existence for the child’s lifetime, so the age question is no longer a concern.

Level of responsibility:

This is the real issue parents grapple with in determining a proper age for distribution. How responsible are your children? Perhaps the more important question is: how do you perceive your child’s level of responsibility?

Before I had children I had a hard time understanding why continuing trusts for children were such a big deal—let the children have their cake, I thought. Not anymore. As the father of two boys I now understand just how perplexing the question of responsibility can be. I also know that every child is different and my perception of each of my children may vary from their actual level of responsibility. And it is my perception of responsibility that matters because that is what will drive my decisions in planning for my children.

So take a good look at your individual situation and ask yourself, what do you think is best for your family? There are many variables and options to choose from to help your children. But your opinion is the only one that counts when creating your own trust.

Give me your facts: Why Form Interrogatory 15.1 is the most important discovery question in California

Posted by Stewart R. Albertson on April 05, 2011

California Form Interrogatory 15.1 (an “interrogatory” is just a question) is the most important interrogatory to serve on your opposing party in a lawsuit. And the law requires they answer it fully and completely. Yet, so many attorneys refuse to answer the question properly.

A typical use of 15.1 follows:

You file a Trust Contest or a Will Contest (or any other type of lawsuit) alleging three causes of action: (1) Undue Influence, (2) Lack of Capacity, and (3) Financial Elder Abuse. The opposing party files an answer to the Trust Contest or Will Contest denying most, or all, of your allegations, and on top of that includes 15 affirmative defenses (an affirmative defense, if proven by the opposing party, operates to defeat your claims even if the facts supporting the claim are true).

The opposing party’s denials and affirmative defenses must ultimately be tried, which can make for a long, costly and confusing trial. But what if the denials and affirmative defenses could be trimmed down before trial? That’s the purpose of 15.1—you can narrow the issues, and force the opposing party to show their cards—factual cards—before trial. Once you narrow the issues in a case, you are able to clearly and forcefully present the true facts of the case at trial, which generally equals a win for you.

How does 15.1 do this? 15.1 requires the opposing party to provide all facts, all persons, and all documents that support (1) their denials, and (2) their affirmative defenses. In other words, for each denial of a material allegation in your lawsuit (i.e., Trust Contest or Will Contest) the opposing party must (1) identify all facts supporting each denial, (2) identify all witnesses (including their names, addresses, and phone numbers) who can testify about facts supporting each denial, and (3) identify all documents (or things) (including the name, address and phone number of the person who has each document) supporting each denial. Likewise, the opposing party must identify all facts, witnesses, and documents that support each and every affirmative defense (all 15 of them in the case presented above—that’s a lot of work).

To date, I have never received a proper response from an opposing party to 15.1. I generally follow up the opposing party’s response with a required “meet and confer” letter articulating how they must respond to 15.1. If the opposing party refuses to supplement their improper response I generally file a motion with the court requiring that they properly respond to 15.1. Any time I have filed a motion with the Court on 15.1, the Court has granted my motion and ordered the other side to respond. I have even received monetary sanctions against the opposing parties. So beware, when 15.1 comes your way, especially from my firm, it must be answered.

If you have questions, or would like to receive a form copy of my motion to compel for 15.1, please contact me.

Brain Power-How Personality Effects Trust and Will Contests

Posted by Keith A. Davidson on April 05, 2011

You don't need to have legal experience to know that different people act in different ways to any given situation. Especially stressful situations. Lawsuits are very stressful for most people involved in them. Trust and Will related lawsuits are even more so because it typically involves family, meaning family relationships and long-standing family dynamics that have nothing to do with the present lawsuit.

The Telegraph just published an interesting article written by David Eaglemann on the human brain titled "The Human Brain: turning our minds to the law." It is a fascinating look at how understanding the brain can help with legal disputes. It also challenges some of the fundamental "truths" the legal system implicity applies to cases and the people involved in those cases. The law, after all, is about people. It is supposed to help people and resolve problems that cannot be solved without Court intervention. As such, the nature of people, how each person thinks and acts, should be taken into account.

I really like this artcle and recommend it to anyone trying to figure out the nature of law as it applies to people. Not that it can be figured out, but maybe a little understanding goes a long way.

Justice Isn't Fair

Posted by Keith A. Davidson on March 25, 2011

My law firm strongly believes in fighting for justice and fairness—so much so that we put it right on the first page of our website. But these two concepts, “justice” and “fairness”, are confusing at times, which makes it difficult for clients when attempting to understand how to obtain justice or fairness in a lawsuit.

Let me first explain these two terms in my view.

Justice: Justice is the process of presenting evidence in Court before a judge or jury and having them decide in your favor after the evidence is reviewed. When you win in court you receive a public pronouncement that you are right and the other side is wrong, and you receive a just punishment or reward against the other side in the form of damages, i.e. usually money.

Fairness: Fairness is a financial determination—w ill you receive more from the lawsuit financially than you put into it? If you spend $20,000 on a lawsuit, you want to receive more than $20,000 out of that suit. Otherwise, the lawsuit was not fair—meaning financially fair.

Justice pays no attention to the financial costs of a case. If a person wants justice they must be willing to spend as much time, emotional capital and money as necessary to achieve that result, which can often be an unfair result from a financial viewpoint. And just because a case goes to trial does not mean that justice will be served;you could lose and thereby suffer an unjust result in the process. That’s one of the risks of fighting for justice—injustice.

For example, when we prosecute killers in court for capital murder, whichcarries the death penalty, it is very expensive. The cost of trying death penalty cases far outweighs any financial gain we (society) will get back in return. So do we decide not to prosecute murderers because it's just too expensive? No, because we want justice and as a society we are willing to pay the price for justice. Plus, it is society as a whole who pays--no one person is asked to pay for a death penalty trial. But the death penalty trial is not fair from a financial standpoint because the financial costs outweigh the financial benefits—but it is just.

In a civil lawsuit, however, whether it be personal injury, breach of contract, will or trust contest, or breach of duty case, a single person or small group of people are paying the bill. And a vast majority of people want their case to be fair--meaning they will get more out of the case financially than what they put in. Yet, people regularly want justice.

But justice is not easy to obtain. Rarely is it handed out willingly. It must be fought for at any cost and there is no guarantee that a just cause will prevail--losing is always a possibility. It takes time, effort and an emotional toll to pursue justice. Nelson Mandella, Martin Luther King, Jr., our Founding Fathers all fought for justice, placing their lives and freedom on the line. They paid a high price for their just causes; it was not a fair result.

Sometimes, justice and fairness are both achieved such as when a personal injury suit is won with an appropriate award for damages (although one could argue that the damages should have been paid without having to pay an attorney a fee to go to trial—so maybe it’s not so fair after all).

The next time you find yourself in a dispute ask whether you are fighting for justice or fairness. If you really want justice, be prepared to pay the price. And if you really want fairness, then take the opportunity to accept a fair result when and if one is presented.

Starting With "Why?" Can End With Yes: How a focused purpose can help in business and the law.

Posted by Keith A. Davidson on March 11, 2011

I enjoy reading books about many different subjects, not just law. And occassionally I come across an idea or concept that originates outside law but applies well to the practice of law. I did just that recently after reading a book called Start With Why--How Great Leaders Inspire Everyone To Take Action written by Simon Sinek. Simon Sinek is not a lawyer and he did not write his book for lawyers. His book is bigger than that. Sinek's purpose is to inspire and he has developed a method that anyone can use to stay on purpose and thereby become (and remain) inspirational.

Simon Sinek talks about starting with the "why" or purpose of what you do. For example, you may be a lawyer and know what kind of law you practice, but why do you do it? Why do you get out of bed day after day? It's not to make money, Simon explains that is just a result of what you do. The "why" is bigger than that. For us (meaning myself and my law partner, Stewart), we are lawyers because we believe in helping people resolve their problems, we like to think differently to resolve those problems and we beleive in fighting for justice and fairness. This then forms the basis of how we help our clients and eventually the things we do in practice.

What I like about Sinek's book is that it applies equally well to my legal cases. When I present a case to a judge or jury I must be able to tell them the "why" of the case. Why are we here in Court and why should my client prevail? I am not referring to all the legal rationale--that is important and needs to be included of course--I am talking about the human rationale: why is my side favorable from a practical perspective?

This same concept is discussed by Rick Friedman, a well known trial attorney, in his book Polarizing the Case. Freedman beleives that we should tell the jury why we are before them and he uses a simple statement to do it: "we are here because...." It is up to the lawyer to fill in the blank. For example, we are here because the insurance company defendant refuses to fairly compensate my client for her harms and losses. Or we are here because the Trustee beleives he has unlimited power to do whatever he likes with the Trust assets. Or we are here because the decedent was manipulated to change his Will at a time when he was mentally and physically weak.

You get the idea. By looking at the legal case and detecting, with clarity, the "why" of that case, we can build a strong argument that is not only legally sound, but morally and humanly compelling so people want to side with us because we have the fair outcome on our side.

Solutions R Us: Why We Must Be California Legal Problem Solvers

Posted by Keith A. Davidson on February 21, 2011

Our job as lawyers is to solve our clients’ problems. Every day, in many different cases, we have issues to sort through and resolve--some big, some small. In reality all lawyers are called on to solve their clients’ problems, but some solve problems better than others.

The key to solving a client’s problem is caring about their problem to begin with. Ever try to solve a problem you did not care about? It's nearly impossible to come up with a good solution when you could care less about the outcome. But when we put ourselves into a client's shoes and care about their problem as if it were our own, problem solving becomes more meaningful and necessary.

Being a problem solver does not mean getting a client everything he wants or deserves. When it comes to legal problems, our ability to reach a solution is impeded by the opposing parties and attorney(s) in the case. So a good, or even a great, resolution rarely means getting all you want and deserve. But it does and should mean getting as much as you can while being reasonable about your options and choices.

This is where creativity comes in, the art we truly embrace. Getting as much as you can, or reaching your desired result, often takes creativity. Creativity in the solutions we propose to the opposing side, creativity in how we fight the opposing attorney to reach a resolution, and creativity in looking at the available options. Nothing is set in stone, every problem and every case is new and unique, which provides us with a new opportunity to be creative and find a good solution.

May The Best Contestant Win...Contesting A California Trust vs. A California Will

Posted by Keith A. Davidson on February 21, 2011

Listen to Keith A. Davidson summarize his blog post on the difference in contesting a California Trust and a California Will.

Which is better—A Trust or Will if a fight takes place for your assets after your death? One of the primary reasons people create Living Trusts (also called Revocable Trusts and Revocable Living Trusts) is to avoid probate. And Trusts can also help in reducing or, in some cases, eliminating estate taxes. But can a Trust also help discourage a contest over an individual’s intended disposition of his or her assets at death? The answer is a resounding “maybe.” Let me explain.

Some people believe Trusts better protect against a contest because Trusts are not administered with court supervision. Once the person who created the Trust (referred to as the Settlor) dies, the Successor Trustee begins administering the assets, gathering them up and preparing these assets for distribution to the Trust’s beneficiaries (usually family members), without any need for court supervision. On the other hand, a California Will can only be administered in probate, which requires court supervision. In fact, an Executor is not even appointed to act under a Will until a Petition for Probate is filed with the court and the court appoints the person as executor. Once in court, anyone who wishes to challenge the Will has a ready forum in which to do so. In other words, a contestant normally does not need to open the court process pertaining to a Will—they merely need to show up and file an objection in the probate court.

In contrast, contesting (or challenging) the terms of a Trust is not quite so easy. Trusts can be challenged in court and trustees' actions can be challenged in court, but the person wishing to contest a trust, or its trustee, must take the initiative and bring the matter to court by filing an appropriate petition. Thus, it is the contestant who has to take the initiative to start the court process when it comes to trusts—they can't just show up and object as in the probate of a California Will.

So back to the “which is better” question—is is a Trust better than a Will in warding off attacks by angry beneficiaries? It depends. If an heir or beneficiary is set on contesting the document and if the heir has means to hire an attorney, then a Trust is just as vulnerable to attack as a Will—the fact that the heir or beneficiary must start the process will usually not prevent an attack. If, however, an heir or beneficiary does not have the means to hire an attorney and does not know how to bring a trust contest to the Court’s attention, then the trust may be better at preventing attack. A California Will, after all, is already filed in court, which allows a beneficiary to object to it much easier, sometimes without the help of a lawyer.

Therefore, a Trust may have some benefit over a California Will in preventing a contest by an angry heir or beneficiary, but the benefit is relatively small if the heir is ready, willing and able to take action to bring the matter to court.

New California Decision Puts Bank Trustees at Risk for Attorney Fees

Posted by Stewart R. Albertson on February 10, 2011

We plan to have guest posts from time to time on our blog. Our first guest post, by Richard D. Cleary and Thomas E. McCurnin, can be viewed by clicking here. Messrs. Cleary and McCurnin surmise that a recent case decided by the Court of Appeal, Donahue v. Donahue, may have far-reaching consequences for bank trustees.

As an aside, I litigated a case against Mr. McCurnin several years ago. I can truly say it was an enjoyable experience. Also, I've had the privilege of arguing a court of appeal case in front of Justice Richard M. Aronson, who wrote the opinion for Donahue.

I hope our blog readers will enjoy Mr. McCurnin's and Mr. Cleary's article entitled "New California Decision Puts Bank Trustees at Risk for Attorney Fees".

California Probate--the Procedural Pickle of Passing Assets at Death

Posted by Keith A. Davidson on February 07, 2011

Probate is an antiquated term that simply means to prove-up a decedent’s Will. It is a Court process where a decedent’s assets are gathered, creditors are paid, heirs are identified and located, and the assets distributed either according to the decedent's Will or by statute if a decedent died without a Will (referred to as “intestate” distribution).

The probate process is centuries old and requires compliance with a strict set of procedural rules in order to start the process, administer the process and, ultimately, close the process successfully (see our list of California Probate Forms). The irony is that there are so few, if any, procedural hurdles for assets that pass outside the probate process.

For instance, in California, probate only applies to assets titled in the name of the decedent alone at the time of her death. Many assets pass outside of probate (we refer to these as "non-probate assets"), such as assets that are held in joint tenancy (with right of survivorship), assets passing by beneficiary designations (such as life insurance and bank accounts) and of course assets held in a Trust.

The problem arises when an asset held in joint tenancy, for example, passes differently from the assets passing under a decedent's California Will. The Will may say all assets pass equally to the decedent's children, but if an asset is held in joint tenancy with just one child, then that one child takes the asset regardless of the Will. In other words, the Will does not control, or in any way affect, assets passing outside of probate. This is an important point and may be surprising news for some people.

Another common misconception is that if someone dies without a California Will or Trust their assets pass to the State of California. Not true. Under California law, there is a scheme set up by State law that provides for the distribution of a decedent's assets to their heirs at law if they die without a will. Heirs at law include the decedent's spouse, children, parents, brothers and sisters and even nieces and nephews, at times.

If you find that a decedent has died and there are assets subject to probate, either under a Will or without a Will, then it’s time to start the probate process. That's the subject of another blog post.

California Probate Forms

Posted by Keith A. Davidson on February 01, 2011

Every California probate requires a host of forms to start, administer, and complete successfully. In lawyer talk, these forms are for "decedent's estates," which also means probate estates. Anytime any assets pass through probate, these are some of the forms that are used to navigate the probate process (these are the most commonly used California probate forms, but not an exhaustive list...because that would be exhaustive to prepare).

Petition for Probate Form DE-111

Notice of Petition to Administer Estate Form DE-121

Proof of Subscribing Witness Form DE-131

Proof of Holographic Instrument Form DE-135
(this is for handwritten Wills)

Order for Probate Form DE-140

Duties and Liabilities of Personal Representatives Form DE-147

Confidential Supplement to Duties and Liabilities Form DE-147S

Letters (Testamentary or "of Administration") Form DE-150

Request for Special Notice Form DE-154

Notice to Creditors Form DE-157

Inventory and Appraisal Form DE-160
Inventory and Appraisal Attachment Form DE-161

Creditor's Claim Form DE-172

Allowance or Rejection of Creditor's Claim Form DE-174

Spousal Property Petition Form DE-221

Spousal Property Order Form DE-226

Report of Sale and Petition for Order Confirming Sale of Real Property Form DE-260

Order Confirming Sale of Real Property Form DE-265

Affidavit Re: Real Property of Small Value Form DE-305

Petition to Determine Succession to Real Property (Estates of $100,000 or less) Form DE-310

Order Determining Succession to Real Property Form DE-315

These forms are provided for informational purposes only. We are not intending to provide legal advice by posting them on our blog, but we hope you find them useful all the same. Also consult with a California attorney with knoweldge of probate before filing any forms with the Court.

Fraud -- A Basis For Overturning A California Will

Posted by Keith A. Davidson on January 27, 2011

It doesn't happen often, but the existence of fraud can cause a Will to be invalid. Fraud is simply a lie (called a misstatement of a material fact in legal parlance). Thus, if someone lies to a person creating a Will (called the testator) and that lie causes a different disposition under the Will than otherwise would have been made, then the Will is invalid for fraud.

Let's put this legal-talk to an actual example. A testator had two sons, Adam and Brian; Adam was an alcoholic, but rehabilitated himself and no longer drinks. The testator had previously disinherited Adam when he was an alcoholic, but then created a new Will giving Adam an equal share once he was rehabilitated. However, the testator warns Adam that "if I ever see you drink again, you’re out of my Will for good!"

A few weeks later, the testator and his other son Brian are walking down the street and they see someone exiting a bar with a drink in his hand that looks like Adam, but the testator isn't sure if it’s Adam. He asks Brian if that is his brother exiting the bar, and Brian says "that's my brother Adam all right" even though Brian can clearly tell that the man exiting the bar is not Adam. The testator then changes his Will and disinherits his son Adam based on that lie.

Since the Will in this example was created based on a lie, and the Will was changed in a way that would not have occurred absent the lie, the Will could, and very likely should, be overturned.

The problem, of course, is that these statements made to the testator must be established by credible evidence in court. And if no one else heard the lying statement by Brian and no one else knew exactly why the testator changed his Will, then there won't be any evidence to present in court—Brian certainly is not going to admit to the lie in open Court.

So fraud is a ground, albeit a difficult ground, that can be used to overturn a California Will or Trust (this same discussion applies to the creation or amendment to a Will or Trust too).

Undue Influence--Supplanting the Intent of Another in California Trusts and Wills

Posted by Stewart R. Albertson on January 21, 2011

The concept of “undue influence” can be used to invalidate a Will or Trust. What is undue influence? According to the California legislature “undue influence” is the taking of an unfair advantage of another’s weakness of mind. In a word: coercion. For example, a caretaker befriends an elderly person and takes over the elder’s financial affairs, such as writing checks, paying bills, etc. Even though the elderly person already has a Will and Trust leaving all of her property equally to her two children, the caretaker takes advantage of his position of trust and convinces the elderly person to create a Will and Trust leaving everything to the caretaker and disinheriting the children. The Will and Trust that the elderly person creates under these circumstances does not reflect the elder’s intent (because she wanted her assets to pass to her children), rather it reflects the intent of the caretaker. The children can then sue after the elderly person’s death and challenge the validity of the Will and Trust based on Undue Influence of the caretaker.

Generally, the objectors of a Will or Trust (such as the children in the above example) have the burden of proving by a preponderance of the evidence that the caretaker exercised undue influence over the decedent. But that burden of proof can shift to the caretaker if certain facts are present. Once shifted, the caretaker then has to prove that he did NOT unduly influence the elderly person, and he must likely prove this by clear and convincing evidence (which is a higher standard). This is nearly impossible for the caretaker to prove because he must prove a negative—that undue influence was not present—a hard task to accomplish. Therefore, shifting the burden is critical and nearly always fatal once accomplished.

To shift the burden of proof to caretaker, the children must prove the following three elements:

Caretaker and Mom had a confidential relationship;
Caretaker participated in the creation of the changed Trust and Will; and
Caretaker unduly profited from the changed Trust and Will.

Under the above example, the burden would likely shift to the caretaker because there was a confidential relationship (since Mom was dependent on the caretaker for support and maintenance), we may have facts that he participated in the Will creation (we did not say that above, but it is a common occurrence), and the caretaker unduly profited by receiving all of the estate.

What’s the likely outcome? More than likely, with the proper presentation at trial, the Probate Court will invalidate Mom’s Will and Trust and restore children’s inheritance.

The Intentionalities and Formalities of California Will Creation

Posted by Keith A. Davidson on December 14, 2010

When creating a California Will there are a few basic steps that must be met from a legal perspective in order for that Will to be legally valid. In their simplest form, the two areas required for a valid California Will are the necessary “Intentionalities” and the required “Formalities.”

Intentionalities:

Intentionalities evidence a person’s intent to create a Will. Will creation requires intent—the person creating the Will (referred to as the “Testator” ) must intend to make a Will. And there are a number of things that can undermine the necessary intent to make a valid Will. A short list of such items include: lack of mental capacity, undue influence, fraud, and duress and menace. The full list of intentionalitiesfollows:

Intentionalities:

Intent to create a will
Capacity
Undue influence
Fraud
Duress and menace.

Formalities:

Formalities refer to the formal requirements for California Will creation. For example, a Will must be in writing (no oral Wills are allowed), signed by the testator, and witnessed by two disinterested witnesses. Alternatively, a hand-written Will can be valid if the material provisions are written in the testator’s own handwriting and signed—no witnesses needed (this is referred to as a “Holographic” Will).

Formalities:

Written Will
Signed by testator
Witnessed by two disinterested witnesses or holographic.

Using these two areas of legal requirements, you can go down the list of Intentionalities and Formalities to determine if a Will is valid or not. The lack of any one item may result in an invalid Will. For example, a Will with all the necessary Intentionalities, that is printed from a computer and signed by the testator could still be invalid if it lacks the required two witnesses. Conversely, a properly executed and witnessed Will could be invalid if the testator lacks mental capacity or if the testator is unduly influenced in making the Will.

Does that mean Wills are easy to attack? Not necessarily. In fact, a vast majority of Will contests that make it to trial fail to succeed. Of course, this could be due in part to the fact that many of the cases with troubling facts settle before trial.

Keep this list of Intentionalities and Formalities in mind as we submit further blog posts on the component areas—such as undue influence, capacity, fraud, etc.

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