Tag Archives: executor

IMPORTANT NEW CONSERVATORSHIP JURY RIGHT CASE (LPS) – AND THE IMPACT ON PROBATE CONSERVATORSHIP JURY RIGHT

Posted on by

Conservatorship of Kevin A., California Court of Appeal, Fifth Appellate District, October 2, 2015, Case No. F070914

In the LPS (Lanterman-Petris-Short Act) conservatorship of Kevin A. the Court of Appeal held that the proposed conservatee, Kevin A., was denied his right to a jury trial where he objected to the petition for conservatorship and he personally expressed his request for a trial by jury, but the Court nevertheless proceeded to determine the matter without a jury. Here is a copy of the Opinion, Conservatorship of Kevin A. Opinion from Court Website

In relevant part, the Court held as follows:

  1. In a situation where a proposed conservatee objects to or contests the petition for conservatorship, the right to proceed before a jury at trial, as opposed to an adjudication by the Court, rests completely with the proposed conservatee, not with the proposed conservatee’s attorney or the Court, unless the Court first finds that there is substantial evidence that the proposed conservatee lacks the capacity to decide for himself or herself whether to proceed before a jury.
  2. In Kevin A. the Court made no specific finding that Kevin A. lacked capacity to decide for himself whether to proceed before a jury.
  3. Alternatively, if the Court determines that there is substantial evidence that the proposed conservatee lacks the capacity to decide whether to proceed before a jury, the control of the decision whether to demand or waive the right to a jury belongs to the proposed conservatee’s attorney, despite the proposed conservatee’s objection.
  4. Regardless of the fact that a proposed conservatee suffers from mental illness or related disorders, those conditions preclude any categorical inference that the proposed conservatee is unable to make a decision regarding whether to demand or waive a jury trial.

In a LPS conservatorship the petitioner, not the proposed conservatee, has the burden of proving that the conservatorship should be granted. Here’s an interesting question: since in a LPS conservatorship an adjudication by a jury to grant the petition for conservatorship must be unanimous, in the situation where the proposed conservatee is objecting to or contesting the need for the conservatorship, would there be a strategic advantage for the proposed conservatee to demand a jury trial instead of proceeding before the single judge?

Next question, how, if at all, does the holding or reasoning in Kevin A. also impact or relate to general probate conservatorship proceedings under California Probate Code §§1800, et seq.? In summary, for the reasons discussed below, it appears that the reasoning in Kevin A. would similarly apply in general probate conservatorship cases and the proposed conservatee’s right to decide whether to proceed before a jury in those cases.

In a general probate conservatorship the proposed conservatee also has the right to demand a jury trial on the issue whether or not the conservatorship should be granted. Probate Code §1828(a)(6). Additionally, in a general probate conservatorship both the court investigator and the Court are required by statute to inform the proposed conservatee about a number of his or her legal rights, including, or example, his or her rights to object to the petition for conservatorship, and to decide whether or not to have a jury trial. See Probate Code §§1826 and 1828.

Both LPS and general probate conservatorships also follow the normal rules of civil procedure. Probate Code §§1000, 1827 and 2100; Welfare and Institutions Code §5350. In fact, although the LPS conservatorship statutory provisions are provided for under the California Welfare and Institutions Code (see W&I Code §§5000, et seq.), the Court in Kevin A. stated as follows, recognizing that the procedure for establishing a LPS conservatorship is also the procedure that is used for establishing a general probate conservatorship:

“Section 5350 provides, in relevant part, the “procedure for establishing, administering, and terminating a conservatorship under this chapter shall be the same as that provided in Division 4 (commencing with Section 1400) of the Probate Code ….” Probate Code section 1827 provides: “The court shall hear and determine the matter of the establishment of the conservatorship according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the proposed conservatee.” Section 1828 of the Probate Code requires the court to “inform the proposed conservatee” of his or her “right to oppose the proceeding, to have the matter of the establishment of the conservatorship tried by jury, to be represented by legal counsel if the proposed conservatee so chooses, and to have legal counsel appointed by the court if unable to retain legal counsel.” (Prob. Code, § 1828, subd. (a)(6).) Thereafter, the court must “consult the proposed conservatee to determine the proposed conservatee’s opinion” regarding the “establishment of the conservatorship,” the “appointment of the proposed conservator” and any limitation to his or her legal capacities. (Prob. Code, § 1828, subd. (b)(1)-(3).)”

Similar to a LPS conservatorship, in a general probate conservatorship it is also the burden of the petitioner to prove that there is a need for a conservatorship, i.e., that the petition for conservatorship should be granted. Although the amount or degree of proof that is required to prove that a conservatorship should be granted is different in a LPS conservatorship than it is in a general probate conservatorship, beyond a reasonable doubt compared to clear and convincing evidence, respectively, and a LPS generally is probably thought of as being a more serious type of conservatorship, an argument can be made that a general probate conservatorship could be an equally or even more serious type of conservatorship because the LPS conservatorship lasts for one year, at which time it must be renewed, whereas the general probate conservatorship lasts until it is either modified by Court order or the conservatee dies. Additionally, in general probate conservatorships the conservator and the Court also are or might be making decisions relating to the conservatee’s personal freedoms and restrictions, placement including possible locked or restricted facilities, and medications.

Conservatorship cases are numerous in number and involve important rights, but relatively speaking there have been very few appellate-level court decisions involving conservatorships. And, although I don’t have the statistics, if the statistics even exist, there are very few jury trials in contested general probate conservatorships – jury trials are not encouraged although the proposed conservatee has that absolute right. Further, whereas there are Judicial Council jury instructions for LPS conservatorships (see CACI 4000-4013), jury instructions for general probate conservatorship jury trials are not provided, although you can find a sample jury instruction that I wrote at http://wp.me/p1wbl8-8Q

Having more jury trials in conservatorship proceedings is a mixed bag. We have been primarily discussing the rights of the proposed conservatee because in fact it is only those rights that are being variously protected or restricted in general probate conservatorship proceedings. But requiring or having more jury trials in contested general probate conservatorships to a certain extent does put more burden on the Court system – seating a jury and conducting a jury trial does take more time. And if they had a choice, the majority of the parties who find themselves petitioning for the establishment of a conservatorship logically might greatly prefer to not have to incur the additional time, expense, and uncertainty that a jury trial can cause. Some people might also argue that having to seat a jury in some or perhaps even in many conservatorship cases could be wasteful of resources or should be unnecessary where it might appear evident beforehand and even prior to trial that some form of assistance or conservatorship might be helpful or granted. Nevertheless, those arguments could be made in every case, whether civil, criminal or probate, where a party has a right to decide whether to proceed before a jury, and at law do those arguments overlook the proposed conservatee’s acknowledged legal and procedural protections and rights?

Following the reasoning in Kevin A. and viewing the proposed conservatee’s personal and procedural rights from a legal prospective, in a contested general probate conservatorship, unless the Court determines that there is substantial evidence that the proposed conservatee lacks the capacity to decide whether to proceed before a jury, the decision whether to have a jury trial rests with the proposed conservatee. And arguably in some cases it might be strategically advantageous for the proposed conservatee to demand a jury if the proposed conservatee could have a better chance of prevailing compared to when the adjudication is being made by the single judge.

And one last final question or issue: in both LPS and general probate conservatorships, has it been sufficiently explained to the proposed conservatee not only what the petition requests and that he or she has the right to agree to or to oppose the conservatorship, but also that he or she has the right to a jury trial and whether a jury trial could present advantages or disadvantages in that specific case?

Dave Tate, Esq., San Francisco and throughout California

Elder Abuse Protection Collaboration – Private Attorneys Needed, Updated Elder Abuse Slides Coming

Posted on by

Just some quick thoughts for this Friday morning.

I am seeing more materials and promotions by organizations reporting and combating elder abuse. All of that is for the good and obviously is encouraged and a lot more is needed. The efforts primarily involve spotting elder abuse and reporting to law enforcement, adult protective services or some other governmental entity. I’m also seeing more proposals to have or to offer to have a written form allowing a client to authorize an organization to contact a specific person, such as a spouse or other family member, if the organization believes that the client is being subjected to elder abuse. The written authorization is a good step in the right direction. But let me also tell you, and this comes from years of experience, you must have collaboration with private attorneys to combat and remedy elder abuse. This isn’t a negative comment – it’s just a fact that there will never be sufficient government and APS resources to combat and remedy the numbers of cases of elder abuse and the time and expertise that it takes to handle these cases. Collaboration with private attorneys is needed. I prepared a short blog post video on this in April 2015, which you can see on the following link (note, this video is prepared prior to recent equipment and presentation improvements), http://wp.me/p1wbl8-aT

I am also updating my elder abuse presentation slides, which I last posted in May of this year. I will post the updated slides in a couple of days, so do stay in touch.

Have a very good Friday, and weekend.

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

 

New California Revocable Transfer On Death Deeds – The Good – The Bad And Abuse

Posted on by

California Revocable Transfer On Death Deeds – see the video immediately below, and the primary text for the video at the bottom of this post. Thank you. Please pass this information to other people who would be interested.

P.S., and another “bad” passed along by a friend on LinkedIn – the transferred property might be (most likely is) subject to recovery by Medi-Cal to reimburse the state for expenses paid by Medi-Cal for care during the transferor’s life – in other words, use of the revocable transfer on death deed might not be (most likely isn’t) wise Medi-Cal planning. But I don’t believe many people will be aware of that. The ability to transfer property by way of the revocable transfer on death deed also is not available for all types of property – that is, for some properties the use of the deed is not available. Everyone using or potentially using the revocable transfer on death deed needs to be aware of all of the options available including when it might be used, when it cannot be used, and the results of both. My recommendation: seek knowledgeable legal counsel.

Dave Tate

Text: California Revocable Transfer On Death Deeds

Hello, I’m Dave Tate. I’m a civil and trust, estate, conservatorship and elder abuse litigation attorney. I practice in San Francisco and throughout California. I also represent fiduciaries and beneficiaries in administrations.

This discussion is about the new California revocable transfer on death deed. You can find additional information on my blog at http://californiaestatetrust.com.

You may have heard that California now recognizes a new revocable transfer on death deed for transferors who die on or after January 1, 2016. There are statutory requirements however. And here are a few of them.

The deed must appropriately identify the beneficiary or beneficiaries.

The transferor must sign and date the deed and have the deed acknowledged before a notary public.

The deed must be recorded on or before 60 days after the date that is was executed.

The transferor must have the mental capacity to contract.

If the deed is still valid and not revoked or otherwise overruled or superseded by another document, on the death of the transferor the property passes to the named beneficiary or beneficiaries without probate.

I expect that the revocable transfer on death deed will become a popular estate distribution transfer tool if the public is extensively educated about its availability and use.

The deed is promoted as an opportunity to transfer real property on death without having to incur the costs of having a will or trust prepared, or probate. That’s the opportunity for good.

On the other hand, the deed also presents opportunities for mistake and elder abuse.

The validity and operation of a revocable transfer on death deed are subject to statutory rules and requirements. Very importantly, these are rules and requirements that can be misunderstood, resulting in mistakes and unintended consequences.

As you might imagine, use of the deed also presents issues relating to intent and transferor lack of mental capacity, and opportunities for undue influence, fraud, duress, and elder abuse by family members, friends and third parties.

The validity of the deed can be contested. And I do expect that there definitely will be contests. So we will be seeing how these new revocable transfer on death deeds are used and abused.

That’s it for now. There are of course other cases and statutory provisions that can apply, and the facts of each situation are different. This discussion doesn’t constitute legal advice. You need to consult a lawyer or professional for your situation. You can find more information on my blog at http://californiaestatetrust.com. Thanks for listening.

P.S., please see also the comment above at the top of this blog post about recovery of the property to reimburse Medi-Cal for expenses paid, and that the ability to transfer property by way of the revocable transfer on death deed also is not available for all types of property – that is, for some properties the use of the deed is not available. Everyone using or potentially using the revocable transfer on death deed needs to be aware of all of the options available including when it might be used, when it cannot be used, and the results of both. My recommendation: seek knowledgeable legal counsel.

Dave Tate, Esq. (San Francisco / California)

Trustee Portfolio Investment Strategy Risk Management – Very Relevant Now And Always

Posted on by

The following post is updated from a prior post – this topic is always relevant, including in today’s environment.

A trustee needs a portfolio investment strategy in keeping with the terms of the trust and legal requirements.

In pertinent part California Probate Code section 16047(b) provides:

“A trustee’s investment and management decisions respecting individual assets and courses of action must be evaluated not in isolation, but in the context of the trust portfolio as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the trust.”

In discussing circumstances that are appropriate to consider in investing and managing trust liabilities section 16047(c)(4) also lists the role that each investment or course of action plays within the overall trust portfolio.

You should read section 16047 in its entirety, in addition to the terms of the trust and other applicable statutory and case law; however, the point is that a trustee needs to have a portfolio investment strategy.

And there is another very important reason to have a portfolio investment strategy. Investments will naturally increase and decrease in value over time, and even daily. Although facts and circumstances in each different situation will vary, assuming that there is a portfolio investment strategy and that the portfolio investment strategy and other relevant facts are appropriate for the trust and the beneficiaries, as a general rule gains and losses of different investments within that portfolio investment strategy should be netted such that the trustee gets the benefit of both gains and losses if there is an assertion or claim that the trustee breached his or her management and investment fiduciary duties. Whereas, if there is no overall portfolio investment strategy, there is more of a likelihood that the gains and losses will not be netted, and that a trustee might be chargeable with a loss in a particular investment without the benefit of gains in other investments.

And this also reinforces the need for trustees to regularly review the portfolio investment strategy and the individual investments to make sure that the investments and allocation of investments are appropriate – although gains and losses should be netted as part of an overall portfolio investment strategy, if a particular investment becomes unsuitable or unsuitable to that overall investment strategy and if time continues to pass without a reevaluation of that investment by the trustee, not immediately, but over time, and argument might arise that it might no longer be appropriate to consider that individual investment and losses or gains in that investment as part of the overall portfolio investment strategy. In that circumstance the trustee could find that a court might treat that investment as a standalone investment and also treat gains and losses in that investment in the same manner without the benefit of netting with other investments. Obviously although that situation for the trustee might turn out okay if there is a gain in that investment, it does create greater investment loss risk for the trustee. Additionally, whereas the investment might initially gain in value, is also possible that an argument might arise that a subsequent loss in that individual investment might not be netted with the prior gains in that investment.

The facts and circumstances in each situation will vary, and each situation must be evaluated based on the facts and circumstances of that trust and that situation. Additionally, different judges will have differing approaches to trustee investment duties and responsibilities. Nevertheless, having a portfolio investment strategy approach, and timely reviewing that strategy, the investments made, and the investment allocation within the context of the trust, the beneficiaries, statutory and case law, and the investment and economic environment will help manage and reduce trustee investment liability risk.

Dave Tate, Esq. (San Francisco / California)

Inheritance From Actor Troy Donahue Estate – Equitable Estoppel Gives Beneficiary Legal Status

Posted on by

Actor Troy Donahue died in 2001. On August 6, 2015, the California Court of Appeal, Second Appellate District (Los Angeles) held that Janene Curtis, the biological daughter of actor Troy Donahue, who was adopted at birth and thus was not entitled to inherit by intestacy, nevertheless is a beneficiary entitled to recovery pursuant to the doctrine of equitable estoppel. In other words, equitable estoppel conferred upon Ms. Curtis legal beneficiary status whereas otherwise she had no legal right to inherit. You can read the Court’s decision at the following link, https://scholar.google.com/scholar_case?case=14120595921206700250&hl=en&as_sdt=6,47 

In relevant part, the Court held that the separate legal doctrine of equitable estoppel conferred upon Ms. Curtis beneficiary status where the court appointed administrator of Mr. Donahue’s estate treated and communicated to Ms. Curtis as a beneficiary, Ms. Curtis relied upon the actions of the executor to her detriment, and the executor either knew that Ms. Curtis wasn’t an intestate beneficiary or was negligent in failing to know that Ms. Curtis wasn’t an intestate beneficiary.

This case is important because the Court applies the equitable estoppel doctrine in an inheritance case and cites other cases similarly holding. Although currently the decision is unpublished (the Court should change it to “published”), meaning that it cannot be cited as decisive legal authority in other cases, the case nevertheless is or might be relevant in other cases because it cites other legal authorities and provides a roadmap for the argument. Equitable estoppel can be another tool in estate, trust, conservatorship and elder abuse litigation cases.

Dave Tate, Esq. (California); Blog: http://californiaestatetrust.com; Email: tateatty@yahoo.com

 

Materials on Undue Influence and Susceptibility to Undue Influence

Posted on by

I have a high interest in the validity or lack of validity of will, trust and other estate planning and transfer documents including related mental capacity, undue influence, fraud, decedent or testator intent, document and wording interpretation, and elder abuse. These are issues or criteria that we very often see in will and trust disputes, and financial elder abuse. It’s not too difficult to find discussions in which the author defines undue influence in various legal terms or definitions, and in deed you can find similar discussions in my materials, including that the definitions have changed and are changing over time and that they also depend on the nature of the document or issue at hand including for example whether the document is a will or trust and the sophistication or complexity of the document and its contents. However, as a trial attorney dealing with evidence and expert witnesses the victim’s susceptibility to undue influence and whether or not the victim was in fact unduly influenced or unduly persuaded are equally or perhaps more interesting.

For example, there are many new articles being written about dementia and new findings about how early cognitive deficiencies are being found (i.e., much earlier that previously thought); however, a deeper look considers the extent to which the deficiency makes the person susceptible to undue influence and all of the factors that go into that evaluation. As I like to pass along to my readers worthwhile information and links written by other people, the following is a link that contains discussions about undue influence and susceptibility from a psychological perspective. I believe it is worthwhile reading. Click on the following link for the materials, CLICK HERE

And if you come across materials on these topics that you believe that I should read please do pass them along to me.

Thank you. Have a good weekend. Dave Tate, Esq. (San Francisco/California)

California Trustee and Beneficiary Responsibilities and Rights, a 7-Page Summary

Posted on by

Click on the following link for my 7-page paper discussing California trustee and beneficiary responsibilities and rights, A Summary of California Trustee and Beneficiary Responsibilities and Rights Dave Tate Esq 08012015

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

Description of some of my trust, estate, conservatorship and elder abuse cases

Posted on by

The following are some of the trust, estate, conservatorship and elder abuse cases in which I have been involved.

Trust administration dispute and trial:
Represented a trustee in a very contentious trust administration. Two nephews thought that the trustee was in some manner not administering the trust and the real property properly, hired a very aggressive attorney, and spent a lot on attorneys’ fees. After distributions the nephews sued the trustee for breach of fiduciary duty. After a one week trial the trustee prevailed.

Will contest trial:
A 16-day will contest trial about an at-home computer software prepared will that left everything to the long-time live-in friend who the decedent would not marry, and nothing, not even personal property and family heirlooms, to the children who everyone testified the decedent loved. The testimony presented included family members and family friends, and computer and handwriting forensic experts. The court held: nevertheless there was not enough evidence to overturn the will.

Breach of fiduciary duty trial:
Trustee/beneficiary obtained multiple real property appraisals and then sought to sell the real property to her son for the appraised value. The other trust beneficiary objected. At trial the court held that the trustee/beneficiary breached her fiduciary duty in wanting to sell the property to her son. Neither the trustee/beneficiary nor the other beneficiary were happy with the court’s decision – both got together and settled the entire matter more favorably to both.

Breach of fiduciary duty and elder abuse trial:
A trust beneficiary brought an action against his trustee mom to stop the contract and sale of a trust commercial building at a significantly below market price. Mom sought to sell the property to a “friend” and ex-business partner of dad. The siblings were split – (1) either stop the sale because the property was worth a lot more and mom was being taken advantage of by the “friend”, or (2) let mom do what she wants and what will make her happy. After a 1-week court trial including valuation experts the sale was invalidated.

Trust contest and alleged oral agreement dispute:
Son claimed dad orally told him years ago that he would have some rights to the residential home, but mom and dad’s trust said otherwise. Close to trial and after multiple mediations the son withdraws his claim.

Multiple real property partition trials where owners or beneficiaries could not get along.

Conservatorship and financial elder abuse of mom by two strangers:
A lonely, nice, financially comfortable elderly woman was befriended by two men, both of whom were brothers. Mom loved corvette cars. The two men convinced mom to buy herself a corvette (V-8 engine) and another corvette for them. Daughter caught wind of it – went in for conservatorship and restraining orders. After some convincing the men abandoned the car and did not return.

Board and care facility financial elder abuse by two strangers:
A lonely, nice man was befriended by a younger man and woman couple, who come into the facility and spend a lot of time with the man in his room. The family heard of it. Conservatorship and stay away restraining orders are granted. The facility is supposed to keep the couple out but the couple keeps coming back and getting back in and are having the man start buying them gifts. The police tell the couple to stop, but they continue. When the police then threatened to arrest the couple they stop.

Grandfather wants to leave his house to his grandson:
Grandson and his wife helped take care of Grandfather. Grandfather lived in an expensive neighborhood. Grandfather wants to leave his house to his Grandson. APS got involved over issues relating to whether grandfather had mental capacity, knew what he was doing, and whether he was being unduly influenced. After extensive investigation APS concludes that all is okay.

Union post-death of judgment debtor action to recover remaining judgment:
Union recovered a judgment against a prior officer for embezzlement. The judgment debtor then died before the judgment was paid back, and the debtor’s surviving spouse would not pay the remaining amounts due. Brought multiple action and recovered the debt due (petition for probate and creditor claim, complaint for recovery of the creditor claim amount, action against the trust and its beneficiaries, and separate action against the surviving spouse for community property debt).

Multiple probate and trust actions on behalf of a bank to recovery on an unsecured loan after the debtor dies.

Administrative law action to stop a nursing home to stop the home from discharging a wheelchair resident who was backing up too fast – the SNF wanted to discharge the resident instead of fixing the problem – the ALJ ruled in favor of the resident but had to be forced into that decision as he wasn’t interested in the resident’s rights

Dispute whether an elderly husband and wife could stay at home:
Husband and wife wanted to continue living together and to stay at home. They had at-home care. One or both had possible dementia. There were also allegations of possible self-abuse (inadequate taking care of themselves), and they both liked to have a cocktail late in the day as both husband and wife were ex-military. After a contentious battle both were allowed to remain together at their home.

Dispute whether to disconnect mom from life prolonging hospital machines, and overmedications:
Mom was in a hospital, kept alive by machines. She did not have an advance directive. The siblings were split about whether to keep mom connected to the machines and whether she would have wanted to live that way. Mom could only blink her eyes. Experts came in on medical issues. The judge was asked to decide mom’s wishes. Eventually mom was disconnected. As it turned out, after mom was disconnected, the issue was improper and overmedication and how the medications were interacting – mom did not die, the medications were fixed – she lived a health, ambulatory life for 5 more years and died a natural death.

Nursing home drop and elder abuse:
Dad was a large man, and was prone to striking out when he was unsure what people were doing with him. The nursing home put a red sign above his bed stating that anytime he was moved from or to his bed (he had to be moved using a hoyer lift and was moved from his bed to a chair and back daily) there must be three certified nursing assistants present. Dad was moved using the hoyer lift with only two CNAs present. The hoyer lift tipped, dad was dropped, hit his head and subsequently died. The SNF blamed the CNAs. Testimony by the staff ultimately evidenced that there was inadequate staffing and that there never were enough CNAs available to have three people present.

Nursing home restraining jacket and elder abuse:
Nursing home CNA put dad in a restraining jacket and caused bad bruising to dad’s back and front torso so that the worker could get off work on time or early so to go see his girlfriend that night as it was Valentine’s Day.

Nursing home physical abuse of female resident:
A nursing home resident soiled herself. The male CNA was unhappy that he had to wash the resident – the CNA was rough with the resident and physically hurt and bruised her as he washed her in the shower.

Action against trustee for failure to diversify investments:
The trust terms allowed the trustee to invest essentially all of the assets in a stevedore company. The law firm that prepared the trust was also the successor trustee, and the stevedore company was also a client of the law firm. The value of the stevedore company was declining significantly year after year over a long period of time. A beneficiary brought suit against the trustee for damages.

Multiple other actions for or against trustees for accountings, and breach of fiduciary duties including investment breaches.

There Needs To Be A Law – Petitioning For Conservatorship Should Not Disinherit You

Posted on by

Short and sweet. I’m not sure what the wording should be, but we need a law that to some extent protects a person from being disinherited for filing a petition for conservatorship.

The situation that I have in mind: a son or daughter files a petition for conservatorship of their mother or father. In doing so, the son or daughter risks that mom or dad will be very angry with the petition and will seek to change their estate planning to exclude or disinherit the son or daughter.  There needs to be some protection for the son or daughter, whether the petition for conservatorship is granted or not.

I’m not saying that I favor conservatorships. A conservatorship can be a serious restriction on a person’s constitutional rights and freedom. All I’m saying is that a son or daughter should not have to fear possible disinheritance for filing a petition for conservatorship in a situation where there is no finding that the petition was filed in bad faith or where there is evidence that a conservatorship might be necessary even if less restrictive options are available.

Dave Tate, Esq. (San Francisco and California), click link to this blog, Law Office of David W. Tate, and also working with Albertson & Davidson LLP, northern and southern California click link to Albertson & Davidson website.

Will and Trust Undue Influence and Fraud – Sibling v. Sibling Misrepresentations

Posted on by