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Hi, this is Stewart Albertson and we’re going to address an issue – the issue of No Contest Clauses one more time.  We’ve addressed this several times in our videos in the past, but we think it’s an important issue to keep people aware of what the legislation is, in California, pertaining to No Contest Clauses.

So, a No Contest Clause is generally included in a trust, will, or both, and many people are familiar with them.  They say that if you contest your parents’ wishes under the trust or will, that you are to be treated as you’re disinherited.  The parent doesn’t want you contesting their wishes – what they intend to happen to their estate after they die – so these include these No Contest Clauses.

Generally speaking, No Contest Clauses do not apply.  Except in one of three circumstances.  The first circumstance is, if you challenge the terms of the trust based on undue influence, lack of capacity, duress, fraud, any of those type of doctrines, and you do so without probable cause, changes are that you’re going to be disinherited under the trust.

This is the first way that the legislation allows the No Contest Clause to be used against you but it does have a special caveat and that’s the Probable Cause exception.  What that means is if you brought your trust contest based on undue influence, lack of capacity, fraud, duress, you brought that and you are reasonable in bringing that, and other people standing outside, looking at what you were doing at the time you brought the contest, as long as you look reasonable to the court, there’s a fairly good chance that the court will not hold the No Contest Clause against you.

But you’ve got to keep in mind, judges are people.  Some judges, they may hold the No Contest Clause against you, where another judge, under the same set of facts, same set of circumstances, would not hold the No Contest clause against you.

So this is something you have to be careful of, if you’re going to file a trust contest under this first prong where you’re trying to invalidate a trust document based on undue influence, lack of capacity, fraud or duress.

There’s also two other ways that the No Contest Clause can be used against you.  The second way is if you file a Creditor’s Claim against your parents’ trust or estate.  And the No Contest Clause says that if you file a Creditor’s Claim, you’re hereby disinherited.  So you do have to have the special language in the trust terms, in the No Contest Clause, before that would be used against you.  So you want to make sure you pay attention to that.  If you think you’re going to file a Creditor’s Claim against a trust or a will, because you believe your Mom or Dad owed you money, they promised they were going to pay you, and now you’re going to file a Creditor’s Claim?  You better take a look at the No Contest Clause to make sure it doesn’t say if you file a Creditor’s Claim against the trust or estate, you’re hereby disinherited.  Please note, that under this prong of the No Contest Clause, there is no probable cause exception.  In other words, if you file a Creditor’s Claim, you’re done!  It doesn’t matter how reasonable you were in bringing that Creditor’s Claim.

The third way you can get the No Contest Clause to disinherit you – and we’re seeing this one more and more – is where you allege, in some pleading with the court, that your Mom or Dad didn’t have the authority or control or ownership of property to actually transfer that property to their trust.  I’ll give you an example.  Let’s say that there’s a husband and wife and the wife is completely demented, she has Alzheimer’s, she’s still alive, but she no longer has decision-making authority or testamentary capacity.  And Dad decides to revoke all of their old trust, which has all community property in it, and create a new trust that he creates and he moves all of that property into the new trust, which includes his one-half of the community and his wife’s one-half of the community.  And he puts it all in a new trust and in that new trust, he only gives all of those assets to one sibling.  If you’re one of the siblings that’s not getting, you have to be careful.  Or, if you’re getting something of that trust, say $100- or $200,000, you want to seriously consider whether you want to file your Petition saying that Dad did not have the power or ownership or authority to transfer Mom’s one-half of the community into his new trust.  You want to seriously consider that because once you’ve done it, you’ve triggered the No Contest Clause.  And, under this prong, you also do not have a Probable Cause exception.  Meaning, it doesn’t matter how reasonable you were in filing your pleading with the court, challenging the transfer of the property to the trust, saying that Dad didn’t own this property, you’re more than likely going have triggered that No Contest Clause and be disinherited.

But, keep in mind, these No Contest Clauses are real.  Many lawyers think they don’t apply any more.  But the truth is, they don’t apply under most circumstances, but they do under the three circumstances I just described.  So you want to take a careful look at them and make sure they don’t turn around and bite you in the rear.

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Hi, this is Stewart Albertson with Albertson & Davidson.  And I want to talk to you about what your options are when you have one of your siblings isolating either one or both of your parents from you.  They don’t want you around their parents, around your parents.  What do you do in a case like that?

Well, you have two options.  The first option is to file for conservatorship.  And the second option is to do nothing.  And sometimes that second option is the best option to take.  But let’s talk about the first option first.

If you truly believe your parents are in a position where they’re being abused by one of your siblings and that sibling is precluding you and your other siblings from seeing them, filing of a Motion for Conservatorship is a very good tool which will get the court process involved and will also get your parent what we call an independent lawyer to come in and represent them in that conservatorship proceeding.  That’s the good things that came from filing a Conservatorship Petition.

The bad things that can come from it is your parent can be confused by what it is you’re trying to do.  The sibling that is the bad acting sibling in this case may turn your parent against you, suggesting to your parent that you are trying to control their money, you’re trying to control their parent, you’re trying to take their ability to make decisions away.  And if the parent is already confused to some degree with a little bit of dementia or Alzheimer’s, the parent might turn against you.  So, even though you’re trying to do something good by filing for conservatorship, it ends up hurting you because now mom or dad ends up writing you completely out of the trust or will because they believe you’re attacking them, based upon what your bad sibling is telling them.

That’s why you should consider doing nothing with the courts.  If you have any access to your parent at all, you should take that access.  You should continue to see your parent.  You should continue to send cards and notes to your parent.  You should continue to try to communicate with phone calls and document all of this.  But don’t go to your parent and start talking to them about everything that your bad sibling is doing to them.  Don’t go to your parent and start talking about their trust and will.  Where is it?  Because now, you look like you’re a greedy heir even though you aren’t.  You’re just simply trying to protect mom or dad from the bad sibling.

So what I tell people is in a fact and circumstance like this, give mom or dad the bad sunset years or months that they have left on the planet.  Treat them well.  Love them.  Care for them.  Document things for yourself.  And then, when they pass away, you’ll be in a position where you can file something against the wrongdoing sibling and chances are you’re going to be able to hold them accountable for the things they did to harm your mom or dad during their lifetime.

I will say you have to be patient and this is a hard choice to stand by and do nothing when you see this happening.  But it, sometimes, is the better option than filing for a conservatorship which ends up hurting you in the long run.

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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.