Category Archives: trust

David W. Tate, Esq. – blog posts re the new California directed trust provisions

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David W. Tate, Esq. – blog posts re the new California directed trust provisions.
From October 30, 2023 through February 27, 2024, I made several blog posts in which I
discussed the new California directed trust provisions. Below I have provided those posts in one
document for ease of reading, beginning with the first post on October 30, 2023, and ending with
the last two posts on February 27, 2024. There are a total of seven posts.
David Tate, Esq. (and inactive CPA) Email: dave@tateattorney.com
Note: I have joined the McDowall Cotter law firm (San Mateo, California) https://www.mcdlawyers.net/

My practice primarily includes the following:

Probate Court related disputes and litigation – probate, trust, estate, will, power of attorney, elder abuse, real property and conservatorship disputes, conflicts and litigation, and challenging and contentious administrations.

Business disputes and litigation – primarily breach of contract litigation, internal co-ownership disputes, and contentious officer, director, board committee, conflict of interest, workplace, and governance disputes, conflicts, and litigation.

Real property disputes and litigation – primarily co-ownership and joint-ownership disputes, conflicts and litigation, and sales and purchases that go wrong.

Mediator services.

The following are my seven, recent California directed trust posts:

david-w.-tate-esq.-e28093-blog-posts-re-the-new-california-directed-trust-provisions-05012024Download

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

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Top 10 List of Trust and Estate Beneficiary Rights

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Click on the below video for my Top 10 List of Trust and Estate Beneficiary Rights.  I have also posted below the video the text of the discussion.  And feel free to forward this blog post to anyone who would be interested, including beneficiaries, and trustee and executor fiduciaries.  Thank you.  Dave Tate (San Francisco and California)

Text:

Hello, I’m Dave Tate. I’m a San Francisco, California civil, trust, estate, conservatorship and elder abuse litigation attorney.

After years of practice, the following is my top 10 list of trust and estate beneficiary rights in most situations.

And correspondingly, if you are a trustee or executor with fiduciary duties, satisfying these responsibilities will help put you on a good path. The following list is not in any particular order.

Here are the top 10 trust and estate beneficiary rights.

1st. To have the trustee or executor follow the terms of the trust or will.

2nd. To have the trustee or executor act and interact in the best interests of the beneficiaries.

3rd. For the trustee or executor not to self-deal.

4th. To have the assets go to the people who the Decedent would have intended if the trust or will isn’t clear or doesn’t reflect the Decedent’s true wishes.

5th. For the trustee or executor to prudently invest, spend and maximize the trust or estate assets.

6th. For the trustee or executor to take possession of and safeguard the assets.

7th. For the trustee or executor to timely and prudently manage and administer the trust or estate.

8th. For the trustee or executor to make timely distributions in accord with the terms of the trust or will.

9th. For the trustee or executor to reasonably provide timely information about the trust or estate, the assets and its management, as required. Note, as a beneficiary your requests must be reasonable and appropriate.

And 10th. For the trustee or executor to provide timely and proper accountings, as required.

If you are a trust or estate beneficiary you need to know your rights. Similarly, if you are a trustee or executor, you need to know and satisfy your duties and responsibilities to complete your tasks and avoid problems and possible liability. That’s it for now. Thanks for listening.

Dave Tate, Esq. (San Francisco and California), http://californiaestatetrust.com

Upcoming Presentations – (1) Probate Court Litigation; (2) Elder Abuse and Protection

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Upcoming presentations:

(1) Probate Court litigation, for a group of estate planning attorneys, caregivers and fiduciaries, March 26, 2015.

(2) Elder and Dependent Adult Abuse and Protection, for the Riverside estate planning bar, April 16, 2015.

Dave Tate, Esq. (San Francisco and California)

Dementia care divides many families – from NBC

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Dementia and how to care for the person who has dementia divides many families. Click on the following link for a good discussion about family dynamics and disagreements.  Estate planning documents can help avoid some of the issues – such as power of attorney, health care directive, living will, trust, and other documents.  Still disagreements and contests over who will be the decision maker and what care will be provided will persist. I’m reminded of a sibling family dispute case that I was involved in over Mom’s care, her diagnosis and prognosis, whether or not Mom could communicate by blinking her eyes, Mom’s wishes for her quality of life and care, and whether Mom would want to be or should be disconnected from the hospital machine support. Click on the following link for the NBC article, CLICK HERE

Dave Tate, Esq. (San Francisco and California)

Massachusetts legislation to help with in-home care services and costs

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The following is a link to a short discussion about possible legislation in Massachusetts to assist with in-home care services and costs, CLICK HERE.

Dave Tate, Esq. (San Francisco / California)

Undue Influence – From Martin Blinder, M.D. Post

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The following is a post by Martin Blinder, M.D., about forensic psychiatry, undue influence and some possible indicators. It’s a good read for thought. Click here for the link.

Enjoy. Dave Tate, Esq. (San Francisco/California), http://californiaestatetrust.com

California Trustee – What Would Keep Me Up At Night – February 2015

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Please also forward this blog post to anyone else who would be interested. At the request of friends I have also posted below the video the text of the discussion.  Thank you.  Dave Tate

Text:

California Trustees – What Would Keep Me Up At Night – February 2015

Hello I’m Dave Tate. I’m a San Francisco litigation attorney and I also represent trustees in trust administrations. This discussion is for California trustees, and what would keep me up at night February 2015.

Trustee responsibilities are extensive and they arise from different sources including the wording of the trust itself, statutes and case law. Of course you have to cover all areas of your trustee responsibility, but here is my list of primary issues that would keep me up at night as a trustee. This list is not in any particular order.

First, do you understand what the trust says and requires?

Second, have you marshalled and safeguarded the assets that are in or that are supposed to be in the trust? Are they in the trust and under your control?

Third, do you really understand your legal responsibilities including the wording and requirements in the trust, what the probate code and case law require of you? As a trustee you are a fiduciary. You have one of the highest standards of care, responsibility, liability and unbiased fairness and good faith required by law.

Fourth, are the trust assets being invested, managed and recorded properly and prudently? You need to evaluate and manage the returns and the risks, in accord with the wording of the trust and your fiduciary duties. So, for example, the stock market goes up and down. If the market goes down, is your approach to the portfolio management designed to help you avoid liability for losses?

Next, do you have the proper fiduciary demeanor and decision making approach required of a trustee?

Sixth, is the trust cash flow prudently managed? You might, for example, through no fault of your own have a trust with declining asset values or liquidity issues.

Next, do you know what to do if you have beneficiaries who are disagreeing with your decisions, or who are threatening litigation?

Eighth do you know what information you must or possibly should provide to the beneficiaries?

Ninth, do you understand that you have personal liability exposure for the actions that you take or don’t take as the trustee? You are required to be prudent with risk management. Also consider possible fiduciary insurance coverage although in most situations it isn’t required.

And last on this list, when necessary do you consult with professionals to advise you on your fiduciary duties and trust administration management?

That’s it for now. You can find more information at http://californiaestatetrust.com Thanks for listening.

Mandated Elder & Dependent Adult Abuse Reporting – Then What’s Next – Community Response

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TRUST, ESTATE, CONSERVATORSHIP AND OTHER ORDERS CAN BE APPEALED

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Many types of trust, estate, conservatorship, power of attorney and advance health care directive orders and non-orders can be appealed.

Appeal should be evaluated and taken in appropriate cases, i.e., when appeal is warranted in light of the costs of appeal, the likelihood of success, and the issues or amounts at issue.

And in circumstances where appeal cannot be taken, it might still be possible to obtain appellate court review by writ.

For example, and to help you out, the following are some but not all of the situations where trust orders or non-orders can be appealed, and these also apply to many similar estate related orders:

● Authorizing or approving the sale, lease, encumbrance, purchase, or exchange of property.

● Settling an account of a fiduciary.

● Authorizing or approving the acts of a fiduciary.

● Directing or allowing payment of a debt, claim, or cost.

● Authorizing the payment of compensation or expenses of an attorney.

● Authorizing the payment of the compensation or expenses of a fiduciary.

● Surcharging, removing, or discharging a fiduciary.

● Allowing or denying a petition of the fiduciary to resign.

● Discharging a surety on the bond of a fiduciary.

● An adjudication under Section 850 relating to ownership of property or contract obligations.

● Many orders under Section 17200 relating to the existence and administration of the trust.

● An adjudication of the apportionment of generation skipping transfer tax under Section 20200.

Anyway, and more types of orders can be appealed, but this list will give you an idea of the many types of orders and non-orders that might be appealable in trust and estate proceedings.

Dave Tate, Esq. (San Francisco / California)

Admissibility of Hearsay Evidence of a Decedent’s Will or Trust

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In will and trust contest actions the person who signed or who supposedly signed the will or trust is usually deceased.  Statements that the decedent previously made are considered hearsay, i.e., a statement made out of court that is being admitted for the truth of the statement, and are not admissible in evidence unless a hearsay exception applies. California Evidence Code section 1260 provides an important possible hearsay exception that may apply in will and trust contest cases; however, the applicability of section 1260 depends on a determination by the Judge in the case and applicability can vary from case to case and from Judge to Judge.

California Evidence Code section 1260 provides as follows:

Section 1260.  (a) Except as provided in subdivision (b), evidence of any of the following statements made by a declarant who is unavailable as a witness is not made inadmissible by the hearsay rule:

(1) That the declarant has or has not made a will or established or amended a revocable trust.

(2) That the declarant has or has not revoked his or her will, revocable trust, or an amendment to a revocable trust.

(3) That identifies the declarant’s will, revocable trust, or an amendment to a revocable trust.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances that indicate its lack of trustworthiness.

And, in an action involving a claim or demand against an estate of a decedent, California Evidence Code section 1261 also provides an additional possible hearsay exception in appropriate circumstances as determined by the Judge in the case.  Section 1261 provides as follows:

Section 1261.  (a) Evidence of a statement is not made inadmissible by the hearsay rule when offered in an action upon a claim or demand against the estate of the declarant if the statement was made upon the personal knowledge of the declarant at a time when the matter had been recently perceived by him and while his recollection was clear.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.

Dave Tate, Esq. (San Francisco / California)