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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about an issue that we are seeing more and more of and that has to do with statute of limitation.  Statute of limitation being the time period that you’re allowed to bring a lawsuit, whether it’s in probate court or civil court.

What we’re seeing and this video may be more to the practicing attorneys out there, but it’s also something the beneficiaries will want to be aware of.  We’re seeing people miss these statute of limitations in trust and will cases and we believe the reason for that is is because it’s a complex analysis to determine what particular statute of limitation applies at what particular time at what particular proceeding in a trust and will contest matter.

Let me give you an example from another area of law to show you why we’re having issues with the trust and estates statutes and we’re seeing those come up more often where people are making mistakes.

Let’s talk about personal injury.  Personal injury is very simple.  If somebody crashes into you in a car.  If somebody punches you in the face, you have two years to bring a lawsuit against that person before the statute of limitation runs.  In other words, you can do anything you want for up to two years, as long as you file your lawsuit before the end of two years.  You can bring a personal injury action against the person who hurt you.

Well, let’s come back to trust and estate law now.  It’s not that simple.  There’s various statute of limits that apply at times.  Let’s talk about the bright line statute of limitations pertaining to decedents.  The general rule is that when someone dies, and everyone should know when someone dies, that’s pretty easy to ascertain.  You have one year to make a claim against that person.  But that year can be shortened to as little as 120 days, depending on the circumstances.

If a petition for probate goes out and you have a will that’s admitted into probate.  Once that’s admitted into probate, now you have 120 days to file a claim against the decedent.  To make matters worse, if you’re doing a certain type of claim against the decedent, you’re going to have what we call a creditor’s claim in the probate estate of the decedent and you’re going to have to file a lawsuit all before the end of the claim period running.

In other types of cases, you only have to file the creditor’s claim but you can file the lawsuit after a year.  And so this becomes confusing to many lawyers as it may be to you now as I’m trying to explain it.

There’s also another complication where you have financial elder abuse claims.  This is where someone has a done a wrongful taking against somebody that’s a dependent adult or somebody that’s older than 65 years of age in California. We don’t want people abusing our elders.  We don’t want them taking their finances in a wrongful taking.  So the statute allows us to sue somebody, the wrongdoer in that case, for up to four years after the wrongful taking.  So we literally can have four years going by, and as long as we get the financial elder abuse case on file before the four years runs, chances are, we beat that statute of limitations.  However, if you were given statutory notice under a trust, which gives you 120 days within which to file a trust contest, and you do not file that trust contest within 120 days, you may be precluded from filing a financial elder abuse claim even though it gives you four years.

One more thing to add and that would be what if the drafting attorney, the attorney that drafts the trust or will, what if they have made a mistake and they hurt you as an intended beneficiary of that estate plan.  In that case, you have one year from date of notice that you knew you were harmed by the attorney’s drafting, to file a legal malpractice case against that attorney.  If you don’t have notice and you discover it later, more than one year after the event took place, you may be able to argue you didn’t have actual knowledge or that you shouldn’t have known about the harm that took place, and you may be able to use a four year statute of limitations to sue the attorney for legal malpractice.

The whole point of this video is not for you to understand all of these varied statute of limitations, some as short as 120 days, some as a long as a year, some as long as four years, is to show you that there’s complexity in each one of these trust and estate cases, you need to have expert analysis of your case so that somebody can see what the facts and circumstances are and what statute of limitations are going to apply to your case moving forward.

If you miss a statute, chances are you’re going to be barred forever from bringing your claim forward.  So even those these are complex, difficult to understand, it’s something at the very beginning of a case you have to spend the time to understand, make sure you’re not missing anything, especially on the shorter ones such as the 120 days, because that one comes and goes very quickly.

Hopefully I haven’t confused you too much.  I’ve confused myself a little bit in going over all this.  All I want to point out is, this is a complex areas, these statute of limitations in trust and estate matters, make sure you get somebody that’s qualified to explain them to you and you understand the time limits you have to bring your claim forward in either probate court or civil court.

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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about undue influence cases.  What makes a good undue influence case and what makes a not-so-good undue influence case?  And let me just set this out as we meet with lots of people that come into our office saying, “Hey, I want to contest my mom or dad’s trust or their will because I know that my brother Bob exercised undue influence over my parents and I’ve been written out of the will or the trust and I will receive no inheritance and I’ve got the best evidence you’ve ever seen Mr. Albertson, or Mr. Davidson, and we’re going to come in here and we’re just, this is going to be a slam-dunk.  You’re going to have no problem winning this case!”

The type of evidence you need to have a good undue influence case, it’s a high bar.  The burden of proof that’s required for you is high.  It’s not easy to invalidate a trust or a will.  So that begs the question, “OK, well then what makes a good undue influence cases versus a not-so-good undue influence case?”

Well, let’s talk about some of the elements that you need to meet to prove that undue influence did, in fact, take place.  One of the first things we have to show is we have to show that the decedent, your parent in this case, was a vulnerable individual.  We can show that several ways.  The most easy way to show that is that they’re over the age of 65 or they’re a dependent adult.  So if they’re over 65, chances are, you could show that they have some vulnerable to them.  The State of California has addressed financial elder abuse and said, “Look, we see a lot of financial elder abuse happening in our state, so we want to stop that.  And so what we’ve done is we’ve set out some criteria for people to look at.  This, these are the elements that we look to to prove an undue influence claim.”

The other way you can look to see if a person is vulnerable is what if they have some type of a medical issue?  What if they have some diagnosis for dementia or Alzheimer’s or anything of the like that affects their mental cognition?  That is something that also will support the element of the decedent being vulnerable.

We also want to look to other elements.  What about the actions or the tactics of the wrongdoer?  The wrongdoer is the person that exercised undue influence over the decedent.  And a lot of times this is not something that you see that’s nefarious or evil or somebody yelling or screaming at the decedent, it’s actually done in a very nice manner.  And it happens like this:  The wrongdoer comes to the decedent while they’re still living and says, “How come your son, Johnny, doesn’t come visit you anymore?  Oh, you know, I don’t think Johnny cares about you.  It’s too bad that Johnny’s not here to take care of you like I’m taking care of you.”  And it’s just done over time.  And, of course, this person already – the decedent already is vulnerable, because they’re older, over 65 or older, they may have a health issue, and so now you have this person who is doing deceitful actions and tactics to influence the elder that their son Johnny really doesn’t care about them and we see this element time and again in a good undue influence case.

We also want to look to another element and that is what type of authority did the wrongdoer have over the decedent?  And authority can come in many forms.  Authority can be that this is the person’s agent, under their durable power of attorney, or maybe they’re already the trustee of the trust.  They can also be somebody that the decedent relies on for their necessaries of live, such as daily medication.  Somebody to drive them to doctor’s offices.  Somebody to help change their diaper in bed.  Somebody that makes sure that hospice is taking care of them.  Here we see the decedent, the elder, is being very reliable on this person who has this apparent authority over them.

The last element that you want to flush out in a good undue influence case is there is an inequitable result.  This is most easily shown in cases where the decedent had a preexisting estate plan that gave everything equally to all of their children.  And we see this time and again.  And then just before they die, they make a change to that trust that did give everything equally to all their children, and they give everything to one person, either one of their children or the wrongdoer who has come into their life and has now exercised undue influence over them.

So in order to have a good undue influence case, where you can meet the burden of proof which is a high bar in the State of California, you’re going to have to show that the victim was vulnerable, that the wrongdoer used actions or tactics that were deceitful, that the wrongdoer had apparent authority over the decedent, and the results that the wrongdoer got was inequitable.  If you can pull all of those elements together through a totality of the circumstances and showing the evidence, you probably have a good undue influence case.

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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.

 

Casey Kasem’s passing is a sober reminder of how people with estate plans can still be subject to bitter Court disputes in their golden years.  Prior to Mr. Kasem’s death his wife and children (from a prior marriage) were involved in a bitter conservatorship dispute.  Mr. Kasem had apparently prepared a healthcare directive naming his daughter and her husband as agents to make health care decisions (according to news reports).  But Kasem’s wife

had other ideas.  She refused to allow Kasem’s daughter and husband to act.  When faced with the possible appointment of a conservator over Kasem, she fled the state and went to Washington state where the battle over Kasem continued.  Kasem’s passing ends the conservatorship dispute, but my guess is that there is an estate fight in the works.

Kasem’s plight prompts the question: what are family members to do when planning documents fail them?

Healthcare Directive Issues

In Kasem’s case, he had the right planning document in place—a healthcare directive—but it did him little good because his wife did not honor it, and the document cannot enforce itself.  Since Kasim’s wife had possession of him, she was able to circumvent his wishes as stated in the Healthcare Directive apparently.  So what good is a Healthcare Directive?

As with most planning, it is great to have and will work most of the time, but not all of the time.  When you have warring family members who do not get along and work at cross-purposes to each other, then a piece of paper is not going to help much.

The key, is working together with family members to develop a workable plan that works for everyone.  Easier said than done in some cases.  But still, even in tough family situations communication is key.

Having a clear plan on who will make decisions, what the future plans will be for financial management and caregiving (either at home or at a facility), and as much about future medical decisions, or philosophies, is all helpful information.  And the more that is written down, the better.  If nothing else, it will help a Court make a good decision if ever a Court has to get involved in your future care.  Don’t leave it up to chance, as chances are, you will be sadly disappointed by what occurs.

Convincing a Parent to Step Down as Sole Trustee

A similar problem is when a parent no longer has the ability to manage his or her financial affairs, but refuses to admit it.  How does a child step in as successor Trustee when a parent refuses to step aside?  While most Trust documents have a procedure to find a parent “incapacitated” to act, that procedure typically requires a note from one or two physicians—what if your parent refuses to go to the doctor, or refuses to have a mental exam done?

This is a tough problem with no good solution.  If you cannot convince a parent to either step down or see a physician for a mental exam, you have few good choices.

Of course, you can file to obtain a conservatorship over your parent, which would then establish (in a very forcible, expensive, and public way) that your parent no longer has capacity (that’s what happens in a conservatorship, before being awarded the Court must make a finding that the elder lacks mental capacity).  But that is not a good option, as it tends to make a mess of the entire situation (not to mention royally piss-off your parent—and you thought staying out past curfew was bad…).

Alternatively, I have had children act as a Co-Trustee as a means to provide help to a parent without pushing the parent aside altogether.  Co-Trustees work together to jointly manage the Trust estate and pay bills.  The Co-Trustee idea allows you to approach your parent and ask to help them in their role as Trustee, rather than replacing them in that role.  A parent can remain as Co-Trustee with you, and you can take the laboring oar in managing Trust assets and paying bills.  It can be a real win-win for everyone involved.  And it is much easier to talk to a parent about helping them—not replacing them.

Estate planning is not perfect.  There are challenges and issues that we must face.  There’s no doubt that planning is important to avoid being dragged into Court, and a majority of the time good planning will avoid a trip to the courthouse, but not always.

 

 

Selecting the proper Trustee for your California Trust is critical is you want your estate to stay out of the Court system.  Over half of the Trust litigation we work on everyday invokes a bad Trustee doing bad things.  In this video partner Keith A. Davidson discusses some considerations you should keep in mind in selecting your Trustee:

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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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No Photo.jpgPredicting the outcome of a Trust or Will contest lawsuit is a bit like forecasting the weather.  You may have some idea of what is to come, but clear skies can turn into a thunderstorm with very little warning.  And when lawyers predict the wrong result for their clients, most clients get angry—even though the prediction was never guaranteed.  Angry clients lead many attorneys to be severely risk adverse, never wanting to take any risks whatsoever.  So when a client asks “can I legally take this action” it is safest from the lawyer’s perspective to say “NO”!  Only bad things can come from saying yes and then being wrong about it later.

The problem is that saying no may be safe for the lawyer, but it does the client no good.  If all a client wants is to be told “don’t do that” they don’t need to pay a lawyer for that advice.  They can just sit on their hands and do nothing.  What clients want, or should want, is practical advice.  Something that explains the risks and the benefits, leaving the client in the best position possible to make a sold, informed decision on how to proceed.

How is that accomplished?  First, you need a lawyer who knows about the area of law on which you are seeking advice.  Having someone with experience, who has walked through the fire (so to speak) makes a big difference.  It allows the lawyer to separate facts from fiction.

Second, you need someone who knows what is worth worrying about and, more importantly, what is NOT worth worrying about.  Rather than focusing on all possible arguments and problems that may come your way, lets focus on all probable arguments and problems.  “As our collegeue Stacy Kemp with Kemp & Ruge Law Group puts it, ‘it is not enough to have an educated attorney, you need an efficient one, as well.” Also, as a Judge once told me during a Trust contest trial “It may be possible that a monkey can play the piano, but it’s so highly improbable that we don’t need to talk about it.”  That’s great advice.  After that, I stopped telling clients about every conceivable problem, and instead focused on the probable problems that were material to the case.  This allows clients to be fully informed and make good decisions about their case, without being bothered with unlikely results that they need not worry about.

Third, sometimes you just have to stick your neck out to help clients resolve their problems.  The resolution you get when you do nothing is nothing.  You must do something if you hope to resolve your California Trust or Will matter.  Of course, there are no guarantees in life or in the law.  You can lose a great case and you can win a bad one.  But you develop a good strategy, inform the client of the risks, and then proceed to put full effort into the case.  More times than not, good things will happen with that strategy. 

In the end, practical advice is far better than technical advice, but neither is perfect.  You take your best shot and live with the result.  Now that’s as practical as it gets.

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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