Completed (mostly) a will contest and trust real property percentage trial on Friday – read more

I have been away from the blog for a while, preparing for a very contentious and time-consuming trial.

This past week I was in trial on a will contest action, and also on related but separate real property ownership and trust beneficiary percentage ownership claims. The witnesses and experts included my client who was the named beneficiary, the contestant(s), documents in which the decedent expressed her wishes including a police report and APS records in addition to other documents, forensic document examiners, forensic psychiatrists, and third party witnesses including a very spry 102 year old woman who was a friend of the decedent (the decedent executed the will at age 103, and passed away approximately 9 months later at age 104). Issues also involve the validity of a power of attorney that the decedent executed in June 2015 (she died one month later in July 2015), mental capacity, undue influence, elder abuse, trust and power of attorney accountings, costs and attorneys’ fees, and other issues.

As you may be aware, issues of mental capacity and undue influence are not the same for wills, powers of attorney, and trusts, variously including California Probate Code §§810, etc., and 6100.5, etc., and California Welfare and Institutions Code §15610.70, and various other statutes and case law.

The will contest was denied, and my client will receive what the decedent wished and intended.

So . . . I will be back on this blog and other networking, and also on my other blog http://auditcommitteeupdate.com.

Best to you, and thank you for following my blogs and posts. Dave Tate, San Francisco Bay Area and California.

 

Conservatorship Should Not Have Been Granted Where “Friend” Offered To Provide Help – Conservatorship of Jesse G.

I have attached below a pdf of this new California Appellate Court decision in which the Appellate Court overruled a trial court order granting a LPS conservatorship. I have attached the pdf of the entire decision because the decision is lengthy in its discussion of the facts, and only by reading the decision will you get a feel for how difficult it might be to establish that a conservatorship should be granted. And you should read other prior blog posts by me discussing conservatorship issues, including the rights of the prospective conservatee. Also note in my prior posts the crossover that there can be between the legal authorities that relate to LPS conservatorships and general probate court conservatorships. Thus, although Conservatorship of Jesse G. is a LPS conservatorship, the reasoning of the Court, and some or perhaps even most of the legal authorities cited, might also equally apply in a general probate court conservatorship proceeding.

As you read the decision in Conservatorship of Jesse G., note the facts that could arguably suggest that the prospective conservatee might need help, and arguably that the conservatorship could be granted. The Appellate Court (similar to the trial court) also notes that the case is a close call. Also note that it isn’t certain that the help or assistance that the friend offered to provide to the prospective conservatee will be sufficient, or that it will be lasting over time. And yet, the Appellate Court concludes that under the circumstances of the case, the granting of the conservatorship was not legally justified. And some of the reasons why the Court reached that decision have to do with the burden of proof that is required, and that preference to less restrictive measures must be given.

Here is a link to a pdf of the decision Conservatorship of Jesse G. – discussing evidence that a LPS conservatorship should not have been granted

Dave Tate, Esq., San Francisco Bay Area and throughout California.

Probate Court Judges Need More Judiciary Education From The California Judicial Council

I can say this – absolutely. California judges need more, and more detailed, education about probate, wills, trusts, decedent’s intent, mental capacity, undue influence, fraud, conservatorships and elder and dependent adult abuse.

I’m not saying that all judges need more education – some are quite experienced in these areas – but over the past several years I have been running into situations where judges who primarily handle civil or criminal matters are also assigned probate related cases. And this can happen in any court for trial purposes because even in courts that have dedicated probate departments, the trial of a probate case that will take longer than a day will probably be assigned to the master calendar for trial and judicial assignment. I’m not faulting a judge for not having experience in these areas – I am faulting the system and the judiciary education system.

While, yes, it can be argued that it is then for the attorneys to educate that judge, if I’m a judge and one attorney is saying that the law and the required outcome are “X” and another attorney is saying that the law and the outcome are “Y,” as the judge I don’t know who to believe. And add to that the fact that probate, wills, trusts, intent, mental capacity, undue influence, fraud, conservatorships and elder and dependent adult cases and evidence are detailed and complicated, including the law in those areas, which is also regularly changing, and you have a recipe for erroneous decisions, and also opportunities for less than honest counsel to exceed the bounds of advocacy and improperly twist or spin the law and the evidence.

These are important cases. They are the probate court version of family law – important issues, very emotional, and people related and impacting.

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

 

 

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

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)

Mental capacity determinations – forwarding a discussion by Mehrdad Avati, M.D.

Please click on the following link for a worthwhile article by Mehrdad Avati, M.D., in which he discusses mental capacity determinations, different tests, and evaluation. For the article, Click Here

Enjoy,
Dave Tate, Esq. (San Francisco and throughout California)
Blogs: trust, estate, conservatorship and elder abuse litigation, and administrations, http://californiaestatetrust.com, and D&O, boards and audit committees, http://directorofficernews.com

Materials on Undue Influence and Susceptibility to Undue Influence

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)

NAIC Seniors Consumer Insurance Fraud Alert – An Area Of Board Oversight?

The following is a link to something interesting that I came across – an alert by the National Association of Insurance Commissioners about insurance fraud scams against seniors. http://www.naic.org/documents/legal_bulletin_seniors_beware.pdf. The alert contains interesting statistics about the amount of possible fraud, such as “free lunch” seminars. Not to say that a “free lunch” seminar is necessarily a fraud scheme. But as we all know, the purpose of a “free” seminar is to find buyers. For me, however, the alert points to a different problem. The alert assumes that a senior who goes to a “free” seminar, for example, is mentally competent to follow the steps indicated to critically evaluate and resist the fraud. That assumption begs the question or issue: does the senior have the mental competency and fortitude to critically evaluate and resist the sales pitch? In my experience, it’s not uncommon that a senior does not have that mental capacity. Thus, in that circumstance the senior does not have the mental capacity to follow the recommendations provided by the NAIC in its alert, in which case the alert is useless, which also is the intent of the insurance sales person who is trying to sell a senior an insurance product that is not appropriate for the senior. At least policies and procedures, and board oversight of those policies and procedures, are needed so that the insurance entity and broker have in place detailed policies and procedures to determine that only appropriate policies are sold, through appropriate marketing means, with special attention to and oversight of marketing and policies sold to seniors, with the ability of the senior to rescind the policy, without having to hire legal counsel to fight it out with the insurance entity. Where is this requirement, how is it implemented, and where is the board’s active oversight?

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