Probate Court Litigation

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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about one of more difficult set of cases we come across and I call these the “Difficult Don’t Miss Undue Influence Cases”.  Let me say that one more time – the Difficult Don’t Miss Undue Influence Case.

What is the difficult don’t miss undue influence case?  That’s where someone has exercised undue influence over your mom or dad while they are still living and mom and dad have not passed away.  And so the question is, what can we do to invalidate the trust or the will that the wrongdoer got created using – exercising undue influence over mom and dad?

These are very difficult cases and the reason they are is because it comes down to California law and capacity and where mom and dad fits in that capacity determination.  So, you can file what we call a conservatorship proceeding where you ask the court to put someone else in charge of mom or dad’s estate.  But, as you can probably imagine, if mom or dad has any capacity whatsoever, they don’t like being told that they don’t have capacity and they certainly aren’t going to like that you’re the one who is asking the court to find that they are not capacitated.  So mom and dad can become upset by this.

The person who’s the wrongdoer who is already unduly influencing your mom or dad, they’re going to take advantage of this situation and they’re going to point out to your mom or dad, that look, your son not only doesn’t love you and doesn’t like you, your son wants to take your capacity away.  You son’s trying to get access to your estate before you’re even gone.  This son of yours is a greedy heir and we see this again time and time in these cases where mom and dad are still living and somebody is exercising undue influence over them.

So what are you to do in these type of difficult cases?  Do you file for conservatorship and that’s why we call these the Difficult Don’t Miss Undue Influence Cases.  Because if you’re going to file for conservatorship, you have to win it.  If you don’t win it and mom and dad is capacitated – are still capacitated and a court finds that they’re capacitated.  Chances are if you were in their trust or will, you’re certainly not going to be in it now by way of an amendment or a codicil to the will.  And then you’re going to have a much higher hill to climb after your mom and dad die when you do bring a trust contest or a will contest.

So, what is a better option, perhaps?  And it’s hard, because, sometimes you have to sit back and do nothing while mom and dad are living.  And what we suggest to many clients is just focus on mom or dad in their sunset years of their live, give them comfort, give them care, give them compassion, spend time with them.  Don’t talk to them about their trust or their will.  Don’t talk to them about their assets – as difficult as that may be.  Because the person who is exercising undue influence over them will turn that against you and make it seem like YOU’RE the one that’s trying to get their assets.  YOU’RE the one that’s the greedy heir.  YOU’RE THE problem, not them.

So if you can, stay disciplined.  Focus on your parents.  Care for them in the sunset years, however many months or years they have left.  Then, once they pass away, there are remedies available to you, such as a trust contest, a hill contest, and financial elder abuse that you can file to remedy the undue influence that took place against your parents during their lifetime.

These are very difficult cases.  It’s very difficult to determine the best route to take.  Our advice is generally to err on the side of caution and that is wait till your mom or dad pass and then you can address the undue influence.

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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you just briefly about three important sets of documents that we need to get quickly in any type of trust or will contest.  So this happens when a client has already shown up and hired a lawyer.  They’ve already filed their trust contest or their will contest and now the question is what documents do we need to begin the case?  To begin our discovery, to begin strategizing how we’re going to overturn the trust or the will that is a product of undue influence or lack of capacity.

And these come down to three subpoenas and they should go out quickly.  You want to get these documents quickly, to make sure you get the full set of documents, and then you want to have the right people review them once you have them so they can help shape your case going forward, help shape your discovery and, hopefully, shape a successful outcome in invalidating a trust or a will that is the product of undue influence or lack of capacity.

The first set of documents that we want to subpoena right away are from the estate planning attorney.  So the estate planning attorney who drafted the trust or the will or both, we want to get a letter to them immediately telling them to safeguard their file and they can be accept – expecting a subpoena.  Once they receive that subpoena, they have a short time to respond and most estate planning attorneys will send us their files so that we can review them to see what were the circumstances around the creation of the trust or the will.

Sometimes, these attorneys though, they decide they don’t want to send the file and that’s not a problem.  Because then we can file a motion to compel, is what we call it, file that in court and we’ll get a judge to order them to give us the documents.  In many cases, once we file this motion to compel, the estate planning attorney will agree and send over the files.  So that’s the first set of documents you must get in a trust and will contest – and the sooner, the better!

The second set of documents will be the medical records and these are rich – especially if the decedent had multiple providers.  So you want to subpoena out to every single medical provider that you are aware of.  Once you have the first set of medical records, there’ll be other doctors, other hospitals, other medical providers that you’ll in those medical records.  In many cases, neurologists and those are really good medical records to get – so you’ll want to send out subsequent subpoenas for those documents as well.  Most big medical providers are very good at responding to subpoenas and in short order, if you give them a subpoena that’s well drafted and it details exactly what you’re looking for, you will have medical records that you can review to look for things such as dementia, Alzheimer’s and other mental/cognitive deficits that may have impacted the decedent at the time that the will or trust was created that you’re alleging was the product of undue influence of lack of capacity.

Finally, the last set of records are the financial records, and they’re also rich.  Especially if there’s a wrongdoer who did exercise undue influence over your mom or dad before they passed away.  This person generally can’t wait to get their hands on the money until the person dies, so they get their hands on the money during lifetime and they start taking a lot of cash withdrawals from the ATM, they’ll write checks to themselves calling them cash.  They may even sign them for the decedent, your mom or your father, and take this money and start spending it, using it for whatever it is they want to use it for.

So once you file the trust or will contest, you want to jump quickly on these three sets of documents.  Once you have them, they’re going to go a long way in getting you to a good settlement, or you’re going to be able to prove at the time of trial that, in fact, undue influence or lack of capacity did take  place in the creation of the will and the trust.

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Hi, this is Keith Davidson at Albertson & Davidson.  And in this video, I want to discuss step-parents.  And I don’t mean to disparage step-parents, there’s a lot of very good step-parent and step-child relationships out there.  But, there’s also some bad ones.  And a lot of times we’re asked, “Can my step-mom or step-dad, can they change the estate plan after my parent dies?”  So, typically, in this scenario, maybe you have a father who married somebody new and that’s your step-mom.  And then your father passes away and you always thought you had a good relationship with your step-mom, but after your dad passes, things start to get a little strained and awkward and you start to wonder can she actually change the estate?

In some cases, it might actually get downright hostile and maybe the step-mom actually tells you, “I’m changing the estate and I’m leaving it all to my kids and I’m not going to leave your father’s share to you after all.”  And you wonder, can she do that?  And the answer is maybe.  And that’s a typical lawyer answer, right?  But it depends; it depends on what your father did when he planned out his estate.  Or, if he didn’t have any planning at all, that could be a real problem.

So the best case scenario would be if your father had created a trust prior to his death, he has the right to leave assets to step-mom and that’s fine.  But, typically, what you’d want to see is that he left money to step-mom in a trust.  So she can use that money for her care and support during her lifetime, but she can’t change the ultimate distribution of it.  Whatever’s leftover after step-mom passes, has to go to you.  But that only works if your dad created a trust and if he had a trust created that had those type of terms in it that allowed the step-mom to use the assets but not control them.  That required that the assets go to you after death.

If your father didn’t do that, then you probably are not going to be entitled to his share of the estate.  And so what happens a lot of times is, either your father leaves everything to the step-mom, in which case she can do whatever she wants after your father dies, and she can cut you out.  Or, he just doesn’t plan at all and things just pass to the step-mom because it’s in joint tenancy or she’s the beneficiary on life insurance, or whatever the case may be.

So when these things are not planned out and if the assets actually pass to step-mom after your father passes away, then you’re really in trouble, because the step-mom can do whatever she likes.  She becomes the owner of those assets and she can do whatever she wants with them as the owner.

The fact that your father may have had a family home that you grew up in and lived in and has been in the family for decades, the law doesn’t care about that – if your father didn’t plan it out property.  And so that’s really the big question.

So anytime somebody approaches us and says, “Can step-mom change the estate after my father passes away?”  The first question we’re going to have is, “Well, what did your dad have in place?  Did he have a trust?  Did he have a will?  Did he have something that we can look at to see if you, as a child, have any rights to any of those assets?” And if you were to tell us that no, he didn’t have any of those things, then chances are, you’re out of luck.  And that’s a little something about the downfalls of step-parent and step-children relationships when it comes to passing assets.

 

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This is Stewart Albertson with Albertson and Davidson, and I want to talk to you about an issue that we do see from time to time called advances on inheritance. Advances on inheritance are essentially a loan that mom or dad makes to one child. They don’t want to be unfair in giving that loan to one of their children when they have several other children. So they basically tell the person they made the loan to, well that is an advance on your inheritance so that when I die, you’re going to have to take that into account based upon whatever your share of my estate is.

There’s a real problem with advances on inheritance though because the probate code has some technical requirements that must be met to qualify as an advance on inheritance. Otherwise, that payment of money from a parent to a child will be looked at as a gift.  If it’s a gift that makes a big difference because when the estate is distributed after mom and dad have passed away it’ll be distributed equally between all of the children without taking into account the “loan” that was made to one of the children during lifetime.

So how can you tell the difference between an advance on inheritance and a gift? The advance on inheritance can be proven in three primary ways. There’s actually a fourth way, but that gets a little complicated. If you really want to look into this, you can go to Probate Code section 21135, and you can read how you establish an advance on inheritance there.

Generally, the way you prove an advance on inheritance is:

  1. The trust or will terms themselves have in there saying, I’m giving $100,000 loan to my son Johnny, and when I die, this counts as part of his inheritance at the time he receives his ultimate distribution. That’s the first way that an advance on inheritance can be included and be supported by the evidence.
  2. The next way you can establish an advance on inheritance is did your mom or dad have a writing outside the trust or will that simply says: I hereby am making a loan to Johnny and after I die, that should be considered as part of his inheritance for distribution purposes. That would be the second way that you can establish an advance on inheritance.
  3. The third way is you have Johnny acknowledged in a writing that he’s already receiving some of his inheritance by way of a loan prior to mom and dad passing.

If you have any of those three, chances are you can establish an advance on inheritance.

As you can see, this is not always easy to do. If there is money that is given to one child, a lot of money, say several hundreds of thousands of dollars to one child and not to the other, and there’s nothing to establish an advance on inheritance, what is the argument the child makes who received the money during the parents’ lifetime? And that is, it was a gift. If it’s a gift, it won’t be chargeable against their share of the estate. It won’t be an advance on inheritance.

 

The strength-2

I have seen many lawyers argue themselves OUT of a win by talking too much in court. The first rule of oral argument in court is that if you do not need to say anything because the judge is agreeing with you, then SHUT UP. You do yourself no service by re-hashing a point the court already accepts, and you run the risk of changing the court’s mind against you.

In those cases where the court is not going your way, then you do need to speak up. And here is the best advice I can give anyone speaking with a judge in court: listen to the judge and answer his or her question. Sounds simple enough, but again it is rarely practiced.

So often people come to court prepared to argue what they think the issue is, or what they fear the weak point is. But the court often sees the issue a little differently. You have to understand your legal arguments and be prepared to speak, but arguing a point the judge is not asking about is a waste of time and effort. More importantly, you can frustrate the judge and lose the argument altogether.

The best oral arguments I have had in court come from entering into a conversation with the court. The judge raises an issue or question, I listen to what he or she is asking about, and I formulate my response to address that concern.   You must always remember that you are engaging in a conversation with the court. Coming into court with a pre-packaged argument and then not varying from your script is a sure recipe for disaster.

And when the court agrees with you and starts peppering the opposing party with questions, shut up.  At times, your best argument can be silence.

simplicity

How do you write a winning brief? Say what you are going to say, say it, and then say what you said. That is an old rule in writing and it applies to well written legal briefs also. The biggest problem with most written legal arguments is the length. As Winston Churchill once said of a very lengthy report “This document by its very length defends itself against the risk of being read.”

Judges are busy people. The court staff who review most of the pleadings before the judge reads it are also busy people. They have to sort through thousands of pleadings on a daily basis and try to make sense of it all. Yet so many people (lawyers included) think that the judge has a full Sunday afternoon dedicated to siting down with a nice cup of tea and fully reading and enjoying your written pleading. No, no, no. At most a judge may have fifteen minutes to review your work and determine what points you are making.

That means written legal arguments must be presented in a very different manner than any other writing. First, you have to tell the judge what you want him or her to do. What action should the court take? Just say it upfront. For example “the Court should grant this motion because ….” The word “because” is very important because (see what I did there) it forces you to put a point on your thought. If I say “the court should grant this motion” and stop there then the judge does not know why that should be done. Tell the judge why as soon as possible. Do it in your first sentence.

Next, you have to tell the judge what legal authority you have to support the request. Judges like to follow the law (its kinda their thing), so give them the law. It should be short and to the point. Not so short that it makes no sense, but also not any longer than required to convey the point.

Finally, conclude and get out. Your job in any written legal argument is to say what you need to say as quickly and clearly as possible and then STOP. There is no reason to restate the points again, and again, and again. Some lawyers just cannot help themselves from writing too much. There is also a fear that the point may not be made. But in reality it is often the smallest light that cuts through the fog. Simple, concise language covering less than a page conveys a better and more powerful message than ten pages of legal prose.

That’s a loaded question.  It all depends on how the asset you are seeking to recover was titled.  Even though you, and probably your parent, thought that all assets were in one basket and you can simply file one document to get what is rightfully yours, you are mistaken (welcome to Trust and Will law—be prepared for confusion).  There are many ways in which assets can be titled so as to avoid the probate process.  Sounds like a good idea, but it makes lawsuits in this area a real mess.

For example, if you have an asset titled ONLY in a decedent’s name (with no one else on title or titled joint as “tenants-in-common”), then that asset falls to the probate estate and the Will controls.  If the Will is not favorable to you, then you have to file a Will contest.

If an asset is held in joint tenancy, then the asset passes automatically to the surviving joint tenant and the Will is meaningless.  If you want to contest that arrangement then you either have to challenge the original account set up or you have to bring a petition in the decedent’s probate estate and claim that it was not his intention to leave the asset to the surviving joint tenant (a claim you are required by law to prove by the higher standard of “clear and convincing” evidence).

If the assets are in a Trust, then you have to file a Trust contest, which is different from a probate Will contest.  With a Trust contest, you have to challenge either the Trust creation or the creation of a Trust amendment if one of the amendments does not favor you.

And if you have some assets in each of these different types of titling, then you have to file each of these different petitions.  It is not unusual to have three or four different petitions filed in a single case.  It can be a complicated affair and it’s easy to file the wrong claim in the wrong way and then lose out on challenging the asset you want to reclaim.

The bottom line: plan out your attack carefully.  You may only have one chance to make things right.

Is an oral promise to make a will or trust enforceable under California law? Contrary to what many believe, California law provides for the enforcement of oral promises to make a will or trust.

How does the promise to make a will or trust arise? Generally, a parent orally promises a child, a friend, or a caretaker some or all of their assets once they die, if the child, friend, or caretaker agrees to do something for the parent. The “something” can be anything of value, but usually takes the form of the child, friend, or caretaker taking care of the parent until the parent’s death.

But what if the parent didn’t get around to writing a will or trust that states the child, friend, or caretaker gets some or all of the parent’s assets after they die? Or what if the parent never intended to write a will or trust reflecting the promise to the child, friend, or caretaker? Can the child, friend, or caretaker enforce the now deceased parent’s oral promise to give them assets? The answer is ‘yes’.

California Probate Code section 21700, entitled “Contract to make will” has a provision that allows a person to establish an oral promise by establishing that there was an agreement between the parent and the child, friend, or caretaker that the parent would leave some or all of their assets to the child, friend, or caretaker after they died.

But this is where it gets a bit tricky. The procedural hoops one must jump through to make a an initial claim to enforce an oral promise to make a trust or will under California requires the following:

  • First, one has to pay attention to the applicable statute of limitations. The statute of limitations simply tells us how long we have to file a lawsuit to enforce an oral promise. The applicable statute of limitations for filing a lawsuit to enforce an oral promise to make a will or trust is one year from the date of death of the parent. So if the parent dies on January 1, 2014, then the child, friend, or caregiver would have one year (to December 31, 2014) to file an actual lawsuit to enforce the claim.
  • Second, it gets even trickier. Before one can file a lawsuit based on a broken promise to make a will or trust, one must file a “creditor’s claim” in the estate of the deceased parent. The creditor’s claim is not difficult to complete and file, but if one fails to complete this step, and one year passes from the date of death of the parent, one is very likely barred forever from filing an actual lawsuit to enforce the parent’s promise.
  • Third, it’s still tricky. What if nobody has opened the deceased parent’s estate with the probate court? Can one simply wait until an estate is opened, whether that’s one or two years from now, and then file their creditor’s claim? The answer is very likely ‘no’. The applicable statute of limitations states that to enforce an oral promise to make a will or trust, a lawsuit must be filed within one year of the date of death of the parent. So if the probate estate is not opened, then one needs to file a petition for probate to open the parent’s estate with the probate court, file a creditor’s claim, and then file a lawsuit—all before the one year passes from the parent’s date of death.

Each of these steps must be completed before one can have their day in court to prove a claim based on an oral promise to make a California will or trust. If the one-year statute of limitations (calculated from the deceased parent’s date of death) is blown for any reason, the claim to enforce the oral promise is barred forever from being heard. Thus, it’s very important for one to understand and meet the procedural loopholes required to make a claim to enforce an oral promise.

As a lawyer I can’t guarantee you a win.  If I could I would be the most successful lawyer on the face of the planet.  But any lawyer who guarantees a result isn’t being truthful.  And any lawyer who intimates a result by saying things like “I never lost a trial” or “I’ve won 98% of my cases” isn’t being completely truthful either.Boxer Businessman.jpg

Somewhere along the line, after far too many lawyer TV shows and movies, there appeared this notion that good lawyers win and great lawyers win all of the time.  Not true.  Good lawyers can lose, and great lawyers lose more often.  Why?  Because to be a great lawyer you have to try your best, give your all, and take even tough cases to trial.  Sometimes you win tough cases, sometimes you lose.  Great lawyers fight hard for easy and tough cases.

If you only focus on winning, you become risk averse.  Lawyers who say: “I have never lost a trial” haven’t had many trials—or at least not many tough trials.  Taking only the easy cases to trial is not being a good lawyer.  In fact, easy cases don’t go to trial most of the time because they settle.  It’s the tough cases that don’t settle.  So what does a lawyer who is afraid to lose (and ruin his claim of never losing a trial) do with a tough case?  He runs for the hills.

Clients should never hire a lawyer because he or she will guarantee a win on their case.  Clients should hire a lawyer to give them a voice, navigate the litigation process, defend their rights and fight for their rights.  Zealous advocacy is required by our lawyer ethical rules, but not often practiced to the degree it should be.  Will you win your case with this type of lawyer? I don’t know.  But giving yourself the best opportunity to reach a desired result never hurts.  It’s not about winning, it’s about fighting the good fight for as long as it needs to be fought.  Winning isn’t in your hands, that’s up to the Judge or Jury to decide.  Fighting hard is in your control.  So rather than worrying about winning, put your resources into a good fight and oftentimes either a win or a favorable settlement comes your way.