"Trust and Will 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 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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Funny thing about Trustees, they are expected to seek help, just not too much help.  Generally, Trustees are not allowed to delegate their duties (see Probate Code section 16012).  The rules state that anything the Trustee can “reasonably” be required to personally perform cannot be delegated.  And the Trustee can never delegate the entire administration of the Trust to someone else.

Where a Trustee does delegate some matter to an agent or co-Trustee, the Trustee still has a duty to supervise that person in the performance of the delegated matter.  That means a Trustee cannot simply delegate and forget about it.  The Trustee is required to oversee the agent and make sure that the job is being done in the best interests of the Trust.

There is one big loophole this the nondelegation rule: investment and management decisions.  Under the Uniform Prudent Investor act, a Trustee has the power to delegate certain financial decisions (see Probate Code section 16052).  This exception allows a Trustee to delegate financial decisions “as prudent under the circumstances.”  But the Trustee retains the duty to (1) select a good agent to act for the Trust, (2) establish the scope and terms of the delegation, and (3) periodically review the agent’s performance.

Here’s where things get interesting.  Where a Trustee has properly delegated financial decisions to an agent, the Trustee CANNOT be held liable for those investment decisions.  That can be a shocking result for a beneficiary who seeks to hold a Trustee liable for bad investment decisions.  Of course, the agent to whom investment decisions were delegated can be held liable for bad investment decisions.  But that just means the beneficiary may find himself suing a large financial firm rather than the Trustee.

The good news is that financial advisors rarely will agree to accept delegated financial responsibility for a Trust–primarily because of the liability involved in doing so.  Yet, so often Trustees who make bad investment choices will try to pass the buck to the financial advisor.  It then becomes the beneficiaries job to determine whether the investment power was delegated or not.  It could mean the difference between suing a Trustee or suing a large financial institution.

If you happen to be a Trustee, choose your delegation wisely.  Even with the job being handed off to someone else, you may still be on the hook for a bad decision.

 

Part 2 – Litigation Costs.

I read in Senator Harry Reed’s autobiography about a criminal defense attorney who practiced law in the 1960’s and 1970’s who would say when asked how much he will cost to defend a felony murder case “everything you’ve got!”  Well that sounds a bit excessive!  But many clients fear just that, and for good reason because attorneys’ fees in litigation matters are a complete mystery—even to most attorneys.

So the best way to look at litigation fees is what services are you receiving for the money you are paying.  There’s no way around it, lawyers are expensive.  But what you want to do is obtain as much in services as you can for the money you pay.  In other words, as a client you should be looking for value.  If you pay a lot, but in exchange you receive aggressive representation that moves your case along and positions your side for either a good settlement or as much chance of winning at trial as is possible, then that’s money well spent.  If you pay the same amount and merely receive a stack of letters and emails between attorneys, then that’s a waste of money.

To move your case along and put you in the best position possible, takes work…and work is money.  Things like depositions, subpoenas, expert opinions, written document demands of your opponent (and motions to compel when your opponent refuses to respond properly) are necessary to prepare your case for trial.  And a prepared case gives you the best shot of winning or obtaining a great settlement.  If you are not prepared, then you are in big trouble.

So what does preparation cost you?  Well let’s break it down into different levels based on the amount of time your matter spends in Court before reaching either a settlement or a trial court decision.

Level 1: $15,000 to $20,000.  I always say that everyone who enters the litigation arena will spend a MINIMUM of $15,000 to $20,000 even if your case settles early.  What do you get for this money?  Well if you are the party initiating the lawsuit, it will cost around $5,000 to draft up the initial petition (I am talking Will and Trust cases here, but civil cases are similar).  The filing fee and service of the petition will cost around $500 to $750 in hard costs.  You then have your first Court hearing, initial round of discovery and maybe your first deposition and you hit the $15,000 to $20,000 mark.

Level 2: $20,000 to $50,000.  If you case does not settle early, then its on to level two where you get into far more depositions and maybe a few discovery disputes.  As part of discovery you can subpoena bank and medical records and demand documents from the opposing party.  If someone objects to what you are doing, or refuses to comply, then its on you to take them to Court on a Motion to Compel.  A typical Motion requires the initial filing, and then a reply when the other side files their opposition, plus a court hearing on the Motion.  All told a single Motion can cost from $4,000 to $8,000 or more in time.

As for depositions, those are pricey too.  It can cost from $4,000 to $6,000 per deposition.  That includes the court reporter fee, which can be anywhere from $600 to $1,500 per deposition (court reporters charge by the page, so the longer the deposition, the more expensive).

And maybe you have a mediation or Mandatory Settlement Conference, which requires a brief be prepared and attorneys spending all day in a mediation setting.

All told, level two usually will get you through mediation.

Level 3: $50,000 to ???.  If your case does not settle after mediation, then its off to the races.  That means trial.  And trial preparation is time consuming, if done right.  You can easily spend $25,000 or more on trial preparation.  Then there are usually additional motions at this stage, and maybe one of the party files a Motion for Summary Judgment, which can cost from $25,000 to $50,000 to either prepare or defend against in its own right.

And then there is trial, which can cost from $10,000 on up depending on how long trial takes.  For most cases that are litigated through trial, you will spend (from start of the case to finish of trial) from $80,000 to $150,000 or more.  This last phase is by far the most expensive because this is when the cards are down and you’re either “all-in” for trial or you get out.  There’s no way to do trial on a half-hearted effort, not if you hope to win.

Well there you have it.  Litigation is an expensive proposition.  But sometimes you have little choice but to stick up for your rights, and our Court process is the only forum you have to force a decision in your case.  The key is to properly value your case (are you investing wisely in your legal claim), and get the appropriate level of service for your money.

Part I here:
How Much do California Lawyers Cost? The Taboo Question for Trust and Will Lawyers–Part 1 Transactional Fees

Overturning a Will or Trust based on undue influence is not always easy.  But if you know the type of evidence you need to support your case, then you have a much better chance of proving it in Court.  In this video, Stewart Albertson discusses the way in which to prove undue influence in California Trust and Will contest cases.

 

 

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The method for amending a Trust may not be the same as the method for revoking a Trust–what’s the difference?  In this video, Stewart Albertson discusses the difference between the two.

 

 

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Another year is in the books and it’s time to look back at the best of our law blog for the year.  We have had another great year and great feedback from people who read (and apparently enjoy) this blog.  We love giving out good information, so your comments and feedback are always welcome.  In fact, if you ever have any topics you would like more information on, feel free to email me at keith@aldavlaw.com and I will try to include it in a future blog post.

Happy New Year 2014!

As for 2013, here are the best posts of the year based on your feedback:

  1. Pardon our Probate Fees: Written Fees Agreements not required in probate estates.  This has been a big year for appellate decisions dealing with California Trust and Will issues.  In this case the appellate court held that lawyers do NOT need a written fee agreement to be paid probate fees (contrary to any other type of attorneys fees where a written agreement is mandatory).  Buyer (or executor) beware of this one!!
  2. The Settlor Made Me Do It Part 2.  The age old defense—the Settlor made me do it—is challenged in this California Supreme Court decision.  Wait, did I say Supreme Court—they never hand down opinions on trust and will matters?  Yes, the highest Court in California weighs in on a California Trust dispute (very exciting).
  3. In Trusts We Trust.  This post discusses why you should do some basic estate planning.  I can’t tell you how many times people argue with me about doing basic estate planning, so I have stopped arguing back (you can lead a horse to water, but you can’t make him sign a revocable, living trust).  Heck, lawyers make far more money on estates that are not properly planned, so no planning is fine with me.  But if you are still interested in estate planning, then this post gives you an idea of the process.
  4. Abused Trust Beneficiaries.  A few years back we started using the term “abused trust beneficiaries” because that is what we saw in our practice—Trustees running roughshod over beneficiaries.  And since the Trustees have all the money, and the beneficiaries don’t, it’s all too easy to abuse beneficiaries.  Well we don’t like it, so we made it a part of our practice to defend abused beneficiaries.
  5. A Family Affair.  There is not a week that goes by that someone does not ask me about how the law pertains to their family and their assets.  This post was designed to explain how the law sees your family…very different from how you may see your family.  This is a must read for anyone about to enter the Trust and Will litigation world.
  6. Time to Account: How to obtain a Trust accounting.  If you are a Trust beneficiary and you want an accounting, why don’t you have one in hand?  Because the Trustee won’t give you an accounting?  It happens all the time.  This post describes how to go about obtaining a Trust accounting when the Trustee refuses to do so voluntarily.
  7. The Difficult Path of Trustee Removal.  There are good Trustees and then there are bad Trustees—how do you remove a bad one?  Not so easy, but not impossible either.  This video gives some idea of that process.
  8. The Eyes are the Window to the Diagnosis for Alzheimer’s Disease.  This is fascinating research that indicates it may be possible to diagnose Alzheimer’s disease by looking into someone’s eyes.  This has huge ramifications in the Trust and Will world where incapacity due to Alzheimer’s is critically important in Trust and Will contest cases.
  9. Good Lawyers Sometimes Lose Tough Cases, And Great Lawyers Lose More Often.  If you are going to stand up and fight for people (as lawyers are supposed to do) you have to expect to get a bloody nose every now and then.  Fighting is not easy, if it were they wouldn’t call it a fight.  This post describes how the more you stand up and fight, the more you can lose.  But the more you can win too—so let’s fight on!
  10. When is Your Capacity Kaput?  Many people who lack capacity simply don’t know it.  That makes sense, but what do you do about it if you are a family member who wants to help?  This popular post discusses some ideas on how to proceed.
  11. The Crazy World of Trust and Will Capacity in California.  There are different levels of capacity in California, and they get a bit confusing as the Court’s vacillates back and forth on which capacity standard to use in different scenarios.  This video describes some of the finer points of Trust and Will capacity.
  12. California Financial Elder Abuse.  This is a growing problem that is likely to get worse before it gets better.  The physical and financial abuse of elders is an epidemic.  You have to be on guard for this type of activity.

There it is, our top 13 articles for 2013.  Now it’s time to look forward to a happy and productive 2014.

Happy New Year!!

Trust and Will law can be frustrating.  Especially when you are a helpless beneficiary looking to the Trustee to do the right thing and administer a Trust in a way that is fair and honest to all concerned.  Beneficiaries have rights, and they can pursue those rights in Court, but so often the outcome of a case depends on the gut-reaction of the judge hearing the matter.  In one case a Trustee may be fully surcharged, removed, and publicly flogged (well not flogged but you get the idea).  Yet the same case in front of a different judge may result in a hand-slap and wearing a dunce hat for a day.

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Case in point, the California Court of Appeal’s decision in Lowe v. Holk.  Lowe involved the very common claim that many beneficiaries make against their Trustees-mismanagement of Trust assets.  The Trustee had retained a large amount of real property that was either not productive or was being occupied by the Trustee and other family members.  The Settlor (who is the person who created the Trust) died in 2007 and the real property declined rapidly in value along with the real estate bust that occurred from 2007 through 2011.  As the property crashed in value, the Trustee refused to sell the real property and diversify the Trust investments (as is required under the California Prudent Investor Act).  The Trustee also distributed the most valuable property to himself and transferred another rental property to his sister, a beneficiary of the Trust, but failed to tell her that the transfer of the property had occurred.

The sister/beneficiary sued on what appeared to be some very viable, and expensive claims against the Trustee.  The claims included loss of rental income for nearly 3 years, a decline in property value, conflict of interest for the Trustee’s occupying and ultimately distributing the most valuable property to himself.

The Trial Court, however, decided that most of the claims were not worth awarding damages.  The Court did award lost rent for a period of 2 years, and gave a minimal award for payment of utilities on a property occupied by another family member.  But the Court refused to award any damages for the substantial decrease in value for the Trust’s real property and also refused to award attorneys’ fees against the Trustee—or even remove the Trustee from office!  All told the surcharge against the Trustee came to around $141,000, which may sound good but paled in comparison to the losses the Trustee incurred.

Thumbnail image for Rights Photo.jpgSo the beneficiary appealed and the Court of Appeals held…that the Trial Court was right.  Hard to believe.  In actuality, the Court of Appeals didn’t really say the trial court was right, but chose to review the case on the “substantial evidence” test.  This means that the appellate Court looks at the evidence in the light most favorable to the prevailing party and ask “could a reasonable fact-finder find for that party on this evidence.”  To put it another way, the Court gives all the benefit of any doubt to the winner and only overturnes the case if there is no substantial evidence to support the winning decision.  The appellate court does NOT retry to the case or re-evaluate the evidence.  As you can imagine, it is nearly impossible to overcome a Trial Court decision on appeal when the Appellate court uses the Substantial Evidence test.

The decision stands and the Trustee gets off with a light warning.  Meanwhile, this beneficiary loses more than just her case and a boat load of money on attorneys’ fees, she loses her rights under Trust law.  In this case, all the rules set forth about Trustee investing and managing Trust assets are rendered meaningless by the Court’s decision.   

What do you do when a parent is losing capacity, but refuses to admit it?  In this video, I discuss come options for dealig with parents when their capacity is kaput.

 

 

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If you are not around the Court system very often you may not realize the absolute financial crisis affecting our judicial system, especially in California.  Services that were once considered basic Court services are now unaffordable luxuries—such as enough Courtrooms, Judges, and staff to properly run the Court system.  Filing fees have skyrocketed, the number of Court clerks and other staff have plummeted and the wait time to get an open Court room for a civil trial (including Trust and Will trials) have increased dramatically.

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When new cases enter our judicial system parties do not understand why it takes so long to resolve their cases.  Many times I hear about relatives or actions out of state that were handled in a matter of months, so why is my case taking so long?  Welcome to California—and the California judicial crisis.

The problem is widespread and it affects every aspect of your civil case, from filing to administration of your case in the Court system to trial.  Everything takes longer, costs more and may not be done right the first time around (which causes even more expense and delay).  The end result is a growing backlog of civil cases dwelling in the Court system with no way out.  And the longer a case sits in the Court system, the more expensive it becomes from fees and costs incurred.

Clients may be tempted to blame their lawyers for not moving their case along, and there are times when lawyers aren’t as expeditious as they should be.  But by and large, the judicial budget crisis is to blame and it is completely out of our control.

Unfortunately, the court system is likely to get worse before it gets better.  It is a shame that in our American system of justice we cannot even access basic Court services.  In the words of William E. Gladstone “justice delayed is justice denied.”  If you have a few spare minutes be sure to email your California representative or state senator because until this crisis is addressed, your rights may not be enforceable in Court.