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Hi, this is Stewart Albertson with Albertson & Davidson.  I want to talk to you about Motions to Compel.  Nobody likes Motions to Compel.  We don’t like Motions to Compel.  Judges don’t like them, and either do the opposing parties we bring them against.  But they are, sometimes, required to be brought in cases where you need information to make sure you know what facts, witnesses and documents are in a case, prior to going to going to trial.

Here’s how Motions to Compel generally arise.  We sent a first set of written discovery to an opposing side, which includes Form Interrogatories, Special Interrogatories, Document Demands, Requests for Admissions, and they get thirty days to respond to those.  They, generally, will ask for a thirty day extension, so now they’re sixty days out from when we first sent the discovery, to when we’re finally going to get some answers back.  Those answers come in sixty days later and they’re terrible.  They don’t answer any of the questions, they’re just a bunch of boilerplate objections.  It’s really just a bunch of garbage.  And, unfortunately, California, the way that the law is set up, requires us to do what is called a Meet and Confer with the other side, the opposing counsel who just gave you the nasty garbage, nasty responses, didn’t give you anything meaningful in their discovery responses – after having sixty days to do so.  You have to do a Meet and Confer with that person.  You have to try to work it out between the two parties.

Federal Court is so much better than this, but that’s for another day.  Here, we’re in State Court in California.  So we do the Meet and Confer process.  Generally, that requires the opposing counsel to agree to give you a supplemental response to the really bad work they did in giving you their first responses.  They generally will get another two or three weeks, sometimes a month, to do that.  The second set of responses comes in.  These are what we called supplemental responses to the first responses and they’re just as bad as the first responses.   You have to do another Meet and Confer.  You’ve got to work with the opposing counsel, usually by letters, it’s not done very well over the phone, because people get heated in the phone conversations about what we’re entitled to, or what they think we’re not entitled to.  But, generally, you’re going to give them one more shot at getting you valid discovery responses.

Yet again, third response comes in, you’re like four or five months into the case, and the opposing counsel still gives you really crappy responses.  At that time, you’re going to be forced to do a Motion to Compel.  You’re going to have to file a motion with the court saying to the court, I have a right to this discovery, here is what I asked them, here’s how they’ve answered in three different supplements and how they have not answered the discovery, and they need to be giving us this information so we know how to prepare for trial in this case.  That Motion to Compel will be heard.  In our experience, we win most of these Motions to Compel, because we only ask for items that we are entitled to, and sometimes sanctions are awarded, monetary sanctions are awarded against the opposing counsel.

This is a long, drawn out process. It’s expensive.  It’s time-consuming.  It’s not fun.  But it’s something that has to be done.

One procedural device that we’ve just learned about that started in January 1 of 2018 are what we call IDCs.  These are Informal Discovery Conferences.  That’s outside the scope of this particular video dealing with Motions to Compel.  But IDCs are going to hopefully come in and help so that we don’t have to bring so many Motions to Compel.  We’ll be doing another video on IDCs in the near future.

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Hi, this is Keith Davidson from Albertson & Davidson.  In this video, I want to talk about how do you handle a bad trustee who refuses to communicate with you.

One of the biggest problems we see for trust beneficiaries is that their trustee simply doesn’t communicate with them.  The trustee may not tell you what the assets of the trust are, may not explain what the investments are, may refuse to talk to you about a sale of the assets, sale of real property or even sale of stocks, and may refuse to talk to you about when assets will be distributed.  Even when the trust terms require distributions, a lot of times a bad trustee refuses to talk to you about those issues.

Unfortunately, a lot of individual private people who act as trustee of these trusts, they think they can do whatever they want to do.  They think that they’re in charge and they have the right to do whatever they want.  But that’s not true.  There’s actually a whole set of laws under our California Probate Code,  not to mention all the rules under most trust documents, that require a trustee to do a lot of different things for a beneficiary.  And top on that list is communicating.  A trustee simply must communicate with the beneficiaries.  It doesn’t matter if the beneficiaries are hard to deal with or they get angry or they yell, or whatever the situation is, a trustee still must communicate with the beneficiaries and keep the beneficiaries reasonably informed of all the actions that the trustee is taking on behalf of the trust.

And they certainly should be keeping beneficiaries informed about distributions from the trust because that is an important part of the entire trust administration process.  So the next time you’re in a situation where you have a bad trustee who refuses to communicate with you, you need to take action and that’s what our California Probate Courts are for is to help you get the answers and the communication and the information that you’re entitled to as a trust beneficiary.

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Hi, this is Keith Davidson from Albertson & Davidson.  In this video, we’re discussing how do you get your inheritance?  And that really depends on what your inheritance consists of.

If you are the beneficiary of a trust, then you should be able to go to the trustee and get your inheritance from the trustee.  If that doesn’t work, the trustee’s not making distributions, then you may have to go to court.  But that would be the path to get your trust inheritance.

If you’re going to be receiving assets under a will, then the will has to go to probate.  That means somebody has to file a Petition with the court to open probate, get the Will admitted, appoint the executor and then you have to go through the probate process, which is a whole court process in California where the passage of assets is supervised by the court and eventually you’ll get your assets out of the probate process.

If what you’re receiving is a beneficiary designation type asset, like life insurance, then you’d have to go to the life insurance company. And you have to call them up and say I’m a beneficiary and they will send you some forms and they’ll usually work directly with you to get you the money that you deserve as a beneficiary.

If you’re a joint tenant either on real property or on a bank account, then you can just deal with the joint tenancy laws.  For real property, you would file a form and it’s called Affidavit – Death of Joint Tenant and that would put the world on notice once you record that form that the other joint tenant has now passed and you are the sole owner of the property as the surviving joint tenant.

If you’re talking about a bank account, then you just go to the bank, you’d explain to them what happened, take along a copy of the Death Certificate, and the bank will work with you to get the assets to you as a surviving joint tenant.

So the path that you take to receive your inheritance is not just one way.  It depends on the type of assets that you are supposed to be receiving.  You have to go to the source of each asset, and you have to get those assets from each source and that could be multiple locations, depending on the type of assets that somebody has when they pass away.

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This is Stewart Albertson with Albertson & Davidson and I want to talk to you about a fantastic device that we’re starting to use in our cases called the Informal Discovery Conference.  We call these IDCs for short.  What is an Informal Discovery Conference?  What an IDC is is where we’ve asked an opposing counsel to give us written discovery responses to discovery that we’ve sent to them and they’ve refused to give us responses that we believe we’re entitled to under California law.

So we can go to all the work of filing a Motion to Compel, doing all the Meet and Confer process that you’re required to do prior to filing that Motion to Compel.  It’s a tedious task.  It takes a lot of hours.  It’s complex.  Or, we can ask the court to set an IDC.  An IDC is where the court sets up an informal discussion between the lawyers and the judge to see if we can come to a resolution of the impasse we’re having in the discovery fight.  These are fantastic.  We’ve been able to do a couple of these so far since the law was passed, or became effective January 1, 2018 that permits IDCs.  I believe it’s under CCP 2016.080.  If you look there, it gives you all the rules for IDCs.

There’s one judge in Los Angeles that’s actually made this a standing order in her courtroom.  You cannot bring a Motion to Compel unless you’ve done an IDC first.  So what happens at the IDC?  Both lawyers show up, the judge is there.  Some judges hold them in chambers, some judges hold them from the bench.  And we tell the judge why we’re entitled to the discovery we’ve asked for.  The opposing counsel says why we’re not entitled to the discovery.  And the judge, based on his or her experience of being a judge and their experience from they were trial lawyers, they will give an opinion.  It is not an Order.  They will give an opinion.  They’ll tell you their gut reaction to how they would rule on this if we were to bring a Motion to Compel.  Well, changes are, that judge is going to tell you exactly how they would rule on this if you do bring a Motion to Compel, so you got to listen carefully.  If the judge says you’re not entitled to that discovery, move on.  If the judge says you are entitled to that discovery, more than likely, the other side is going to agree at that IDC to go ahead and give you the discovery you’ve been asking for.

We are so hopeful, as trial litigators in California that these IDCs become the norm.  We would love to be able to meet with the judge, have an informal discussion and, with that judge, with the opposing counsel there saying why we’re entitled to the discovery.  Chances are, with the judge there telling us his or her opinion as to whether we have a right to that discovery, we think generally we will have a right to that discovery, the other side will comply and we won’t have to go through the long process of Motions to Compel.  We will report back and let you know how we’re doing with the IDCs.

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Hi, this is Keith Davidson at Albertson & Davidson.  In this video, I want to talk about conflicts of interest for trustees.

A lot of times, a trustee will get themselves into trouble because they will take some action that is a conflict of interest.  Now you have to understand that a trustee is a fiduciary of the trust.  That means that they owe a duty to the trust and to the trust beneficiaries to treat them fairly, to do the right thing.

And one of the things a trustee cannot do is enter into financial transactions as between the trust and themselves personally.  So if a trustee wants to buy an asset out of the trust, it doesn’t matter if this trustee is also a trust beneficiary, the fact that they’re a trustee puts them in a conflict of interest position.  And you’ll see this a lot with individual trustees, unfortunately, where they want to buy something out of the trust and so they just do it.  They just go ahead and do the financial transaction, they buy the asset, they take it out of the trust.  That automatically is a conflict of interest.  Period.  End of story.  It’s a conflict of interest.  It doesn’t matter what the trustee says, they’ve taken an action that puts them in a compromising position because they can’t be in charge of the trust, selling an asset to themselves individually and expect that it’s going to be a fair transaction.

There are ways in which a trustee can successfully do a financial transaction with the trust, but you have to take the right steps.  And so typically you either need an order from the Court where everybody gets proper notice, everybody gets full disclosure of what the transaction is, and everybody has an opportunity to show up and object or state what their views on that transaction should be.  You can take actions outside of court, too, but that’s a little more risky because you have to fully and fairly inform all the beneficiaries and give them a chance to weigh in on this issue.  And if a beneficiary disagrees with the transaction, then the trustee simply shouldn’t do it, because it is a conflict of interest.

Conflicts of interest are probably one of the most common areas where trustees breach their duties of trust to the trust beneficiaries and it’s something that, as a trust beneficiary, you should really be on the lookout for.  Because the minute you see the trustee trying to do a financial transaction with the trust, you know that’s there’s trouble in store for you as a beneficiary.

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Hi, this is Keith Davidson from Albertson & Davidson.  In this video, I want to discuss the difference between lack of capacity and undue influence.  And we talk a lot about these concepts on our videos, on our blog, on all of our websites, because it really is the most important part of a trust or will contest.  We’re almost always bringing a claim to try to overturn a trust or will based on lack of capacity or undue influence.

But those two claims are really quite different.

With lack of capacity, you’re looking at the parent, the elder, the person who created the trust or will.  And you’re trying to figure out did they have the mental requirements, under the law, to be able to create a trust or a will.  And in order to dislodge a trust or will, we have to find medical evidence that shows a mental defect existed at the time the trust or will was signed.  All of the focus is on the parent.

Now, on undue influence, the focus isn’t just on the elder.  There is one element we have to look and see if the elder was vulnerable to undue influence, but then after that, we’re looking more at a bad actor.  Somebody, under undue influence claim, came in and influenced the elder, coerced the elder, replaced the intent of the elder with their own intent and so we have to look at the actions of the bad actor.  What actions did they take?  Were they in a position of authority?  Were they controlling medications or food or access to family members and friends?  All of these factors come into play with undue influence.

And so, a lot of times, we like to say that undue influence is capacity light.  Meaning that you don’t have to prove an actual lack of capacity to succeed with undue influence, you only have to show that there was enough of a mental capacity issue to make the elder vulnerable to undue influence.

Once you have that, then the rest of the elements are going to focus on the bad actor, not just on the elder.  So that’s kind of a basic overview of the difference between lack of capacity and undue influence.

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Hi, this is Keith Davidson with Albertson & Davidson.  In this video, I’m discussing how hard is it to get your inheritance.

And that’s really kind of a loaded question because my law firm deals primarily with clients who have a very hard time getting their inheritance.  That’s why they come to us is because they have some sort of problem that is preventing them from getting the money that they deserve, the inheritance that they deserve.

But in a perfect world, your inheritance should be fairly easy to receive – especially if your parents went to the trouble of creating a revocable living trust during their lifetime.  The whole point of a trust is it’s supposed to be easy.  You don’t have to go to probate.  You don’t have to have the Probate Court or a judge oversee the passage of assets.  The trustee can do all of that.  And if you have a good trustee who knows what they’re doing and who follows the rules, then, in deed, it is easy for you.

Those are not the type of cases that we deal with and they’re not the type of cases that quite frankly I see a whole lot.  Because those type of cases don’t call my law firm.  They don’t call me.  But the ones that do call me are the ones that have problems.

And that’s where we get into trust and will contest, if a bad actor has come in and created an amendment that wasn’t supposed to be there.  Or a bad trustees who refuse to make a distribution of assets, even though the trust says they’re supposed to do that.  These are all actions that, yes, should be easy under our trust and will laws, and yet, problems can arise.  People can act poorly.  People cannot follow the rules.  And for that reason, the difficulty you may have getting your inheritance could be much harder than the next person.

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Hi, this is Stewart Albertson with Albertson & Davidson.  The question today is do we always have to go to court to get my interest that’s due to me under a trust?

For example, say that you’re the 50% beneficiary of a trust but the trustee refuses to distribute your assets to you.  It’s been three years since your mom or dad passed away and there’s no reason for your sibling, the trustee, to be hanging on to these assets.  They could be spending these assets on themselves.  They’re treating these assets as if their own when you’re the rightful owner of these assets and these assets should be distributed out to you.

I get clients that say, “But can’t we just tell a judge this has to happen?  We don’t have to file anything?  Can we write him a letter?  What can we do to get these assets?”  And, unfortunately, the answer is you do need to go to court.  Especially, in light of a set of facts where you’ve been the beneficiary of a trust for more than three years and your sibling is refusing to make that distribution to you.

We’d like to think we still live in an era where letters work or phone calls work or persuasion works.  It doesn’t for most cases.  I’ve been doing this for a lot of years and I can think of one time in my entire career that a letter worked.

So we generally want to send one letter to just see if that will work.  It almost always isn’t and then you’re going to have to go to court and get a judge to order that trustee/sibling to make your rightful distribution to you.

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Hi, this is Stewart Albertson with Albertson & Davidson.  And I want to talk to you about an issue that we have seen come into our firm from time to time and that’s heirs coming in with a copy of their parents’ trust and they have the belief that they’re not able to contest that trust.

Let me give you an example:  Let’s say that mom and dad created a trust in 2010 and they split their estate between their three children equally.  It’s a three million dollar estate and so each one of their children is going to get one million dollars each.  But two weeks before mom and dad passed away in a car accident, one bad brother of the three children got mom and dad to change their trust with an amendment and in that amendment, everything goes to that bad brother and it excludes the other two children.  So now the two children that are out have lost a million dollars each and the bad brother is going to walk away with three million dollars.

The people that have been hurt and harmed in this case come and visit in our office and they’ve been told by other attorneys, they’ve been told by other family members, that you simply aren’t going to win this.  You can’t contest it.  You can’t challenge the amendment that your brother did.  And all that of that, I want to assure you, is false.  If you have been disinherited under the facts as I just presented them, you clearly have a right, a fundamental right, to bring a claim in the Probate Court and ask the Probate Court to look at this amendment, looks at the facts surrounding the creation of this amendment, and ask the Probate Court to invalidate that amendment and go back to the original trust, where your parents truly intended that each one of the siblings get one million dollars each.

So at the end of the day, to make sure we’re conveying to people that are having in this field with trusts and estates and amendments being made late or trusts being made late in a mom or dad’s life, you can contest them in the Probate Court.  Whether you win or not is a separate issue, but you certainly can contest them in a Probate Court.

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Hi, this is Keith Davidson with Albertson & Davidson.  And in this video, I’m talking about what the court has the power to do with a trust or will amendment.

So if you have a case where you have a trust amendment that you don’t like.  Maybe the trust was amended at the last minute disinheriting you.  A lot of times people who aren’t used to this area of the law will say, “Well, why can’t the court just toss out the last amendment?  Everybody knows it’s invalid.  Everybody knows my mom or dad wouldn’t have wanted to do that?  Why can’t the court just toss it out, rather than having to go through this big, long litigation process?”

It really comes down to what our legal system is based on – which is due process of law.  And what that means from a practical perspective is that both sides have to be given a fair opportunity to bring in their evidence to court, the court has to decide whether or not that evidence is admissible using the rules of evidence, the California Evidence Code, and then whatever evidence is actually admitted by the court, the court or the jury (depending on who’s making the decision) then gets to decide the facts of the case.  Who’s telling the truth?  Who’s lying?  Who’s winning?  Who’s losing?  That’s the process that you have to go through.

The court really doesn’t have the power to decide on a trust amendment without giving everybody a fair opportunity to be heard in court.  And that’s what we call a trial.  And, unfortunately, in our system, it can take some time to get to a trial, because everybody has to be also given a fair chance to do discovery, to go out and find the evidence that’s relevant to their case.

So typically, a case might take anywhere from ten months to eighteen months to go from start to trial.  It could take longer.  It depends on the type of case, it depends on the issues that arise, it depends on the court’s calendar, the lawyer’s calendar, the parties’ calendar.  It all just depends on the circumstances of your case.

But what cannot happen is the trust cannot simply be thrown out, the trust amendment cannot simply be thrown out by the judge just looking at it and saying, “I don’t like this.  I’m going to get rid of it.”  It has to be an evidentiary process that’s fair and equal to both sides of the case.