Tag Archives: trustee

Alzheimer’s Cause Might Be Tau Protein – But At Law The Issues Are Mental Capacity, Natural Wishes, Fraud and Undue Influence

Posted on by

The following is an article about a new Mayo Clinic study, that the primary cause of Alzheimer’s might not be what has generally been thought:

“Amyloid – a sticky, toxic protein found in the brains of Alzheimer’s patients — has been the focus of research and diagnosis for decades. But a new Mayo Clinic study published in the journal Brain shows that another toxic protein, called tau, may be a bigger culprit in cognitive decline and Alzheimer’s over the lifetime of the disease.”

Click on the following link for the article: Click Here.

Many of my cases involve cognitive impairment or decline, whether it be diagnosed or called Alzheimer’s, or dementia, or traumatic brain injury, or lack of mental capacity, or cognitive impairment, or otherwise.

In conservatorships the issue isn’t the diagnosis, but whether the prospective conservatee has the ability to take care of and understand financial and/or daily living tasks and to resist fraud and undue influence?

And in will and trust contests or disputes, the issue is whether the decedent understood his or her assets and the effect of the provisions in the will or trust, and whether the will or trust provisions are what the decedent would have naturally wanted if the decedent had the mental capacity to understand his or her actions and the will or trust provisions, and to resist fraud and undue influence?  One additional comment: there is case law that you might not need to wait until after someone dies to contest or seek to invalidate a will or trust – this is an area of law that is developing and that is a positive development.

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

Top 10 List of Trust and Estate Beneficiary Rights

Posted on by

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

Posted on by

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)

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

Posted on by

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

Posted on by

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

Posted on by

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.

INDICATORS OF ELDER AND DEPENDENT ADULT FINANCIAL ABUSE

Posted on by

Elder and dependent adult financial abuse is on the rise, and within the community resources and coordination are inadequate to address the issue. Adding to that difficulty, the possible indicators of elder and dependent adult financial abuse are numerous – it isn’t possible to provide an exhaustive list of financial abuse indicators – and although in some situations the occurrence of abuse is obvious many times whether actual abuse is occurring, or whether you should suspect that abuse is occurring, really depends upon the facts and circumstances at that time, and how you interpret those facts and circumstances. A legitimate explanation for the occurrence might also exist, or it is possible that the elder or dependent adult simply is making what might be considered to be an unwise decision that isn’t being caused by abuse.

All of the above having been said, it is recognized that there is a community-wide need for the collaboration of people and resources, and a visible discussion about elder and dependent adult financial abuse, how to spot it and what to do when it is suspected. The below list of possible financial abuse indicators is intended to be for helpful discussion purposes, recognizing that each situation must be separately evaluated.

As an overall initial indicator, basically, possible elder or dependent adult financial abuse typically becomes apparent from a financial, asset or property situation that appears to be unnatural or out of character for that elder or dependent adult, or for the typical similar person in society. For the purpose of this discussion, under California law a dependent adult is someone age 18 or older and an elder is someone age 65 or older.

So . . . the following are some of the possible indicators or situations where there is greater opportunity for abuse, including undue influence, to occur, but I am sure that you can also come up with additional indicators.

√ Increased or unusual banking activity.

√ An unusually, or out of the ordinary, large transaction.

√ The purchase of an unusual item or service.

√ Money being paid to or for the benefit of someone out of the ordinary. The person could be a stranger to the elder or dependent adult, a caregiver, a housekeeper, a neighbor, a friend, a gardener, or even a family member.

√ A change in account title or authority.

√ Someone improperly using his or her authority over the elder or dependent adult’s account. Possible a trustee, attorney in fact, co-account holder, family member, “friend” or other person.

√ Unusual credit card transactions or balances.

√ A change in deed or real property or account title or ownership.

√ Unusual ATM activity.

√ Telemarketing and mail fraud; fake prizes; fake accidents; unnecessary purchases or home improvements; getting a windfall upon the payment of money or by providing information.

√ Risky, unnecessary or unusual investments, insurance, warranties or annuities.

√ Unusual people accompanying the elder or dependent adult; new or unusual acquaintances; new “friends,” boyfriends or girlfriends.

√ The elder or dependent adult not speaking for himself, or herself; or some other person directing the elder or dependent adult, the situation or the proposed transaction.

√ The elder or dependent adult acting in a secretive or evasive manner; or perhaps in an overly defensive or hostile manner in response to questions or even in response to typical conversations.

√ The elder or dependent adult being forgetful, disorganized, disoriented, confused, or unaware of his or her surroundings or common events.

√ The elder or dependent adult acting paranoid or fearful about the bank or investment or financial institution, or about his or her accounts.

√ A change in the appearance, actions or demeanor of the elder or dependent adult; social withdrawal; unkempt; or health problems, including what is referred to as self-abuse.

√ The elder or dependent adult being concerned about who will help or assist him or her, or take care of him or her.

√ Expressions of concern, pressure, worry or fear.

√ Excessive payment for a product or subscription, or for services; or payment for an unnecessary product or subscription, or for services.

√ Excessive or unnecessary borrowing by the elder or dependent adult, or someone on his or her behalf.

√ The elder or dependent adult wanting to avoid conversation.

√ Unusual or unnatural will, trust, power of attorney, deed, mortgage or account terms or documents; or unusual or unnatural changes in the terms or conditions of those documents; or the unusual or unnatural selection or nomination of the person to exercise authority in or over those documents.

√ Documents, checks, payments, etc., missing, misplaced or stolen.

√ The elder or dependent adult being evicted, or loss of utilities.

√ The elder or dependent adult becoming isolated from others, either because of other people causing that isolation, or because of the elder or dependent adult’s lack of interest or motivation.

√ Forged, missing, or strange-looking signatures.

√ Changes in financial institution.

√ Changes in account, IRA, or insurance beneficiaries.

√ Unpaid bills.

√ The sudden appearance, assistance or interest of strangers, friends or relatives.

√ New people helping the elder or dependent adult around the house, or with the yard; home improvements.

√ Associating with much younger people.

√ Reluctance to discuss financial matters.

√ The elder or dependent adult’s increasing tiredness, withdrawal or depression.

√ The sudden or unexplained transfer of assets.

* * * * *

Dave Tate, Esq. (San Francisco / California)

TRUST, ESTATE, CONSERVATORSHIP AND OTHER ORDERS CAN BE APPEALED

Posted on by

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

Posted on by

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)

Will and Trust Undue Influence in California

Posted on by

Undue influence is typically proven by inference or circumstantial evidence, not limited to the actual time that the will or trust was executed but also based on facts relevant to the issues both before and after execution. Estate of Franco (1975) 50 Cal. App. 3d 374, 382; Estate of Baker (1982) 131 Cal. App. 3d 471, 481.  To make the determination more difficult, different law and standards can apply depending on whether the document in question is a will or trust, different judges will apply different standards and approaches, and there can be a presumption that a signed will or trust that isn’t a forgery is valid and effective. On the other hand however, a presumption of undue influence can apply in certain statutory, fiduciary, and confidential relationship situations.  The facts and evidence in each case need to be carefully evaluated particularly when the will or trust contains provisions that are not natural to what the testator would have wanted and in cases where there are significant sudden or significant changes.

Undue influence consists of conduct that causes the testator to make a disposition of his or her property that is different from that which he or she could have done had he or she been permitted to follow his or her own inclination. Estate of Baker (1982) 131 Cal. App. 3d 471, 480-81.

Pursuant to California Civil Code §1575, undue influence exists upon any one of the following separate and distinct criteria:

(1) the use, by one in whom confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;

(2) taking an unfair advantage of another’s weakness of mind; or

(3) taking a grossly oppressive and unfair advantage of another’s necessities or distress.

There is no fixed definition or inflexible formula – rather the question is whether from the entire context it appears that the testator was induced or his decision making was induced to do or forbear to not an action which he or she would not do, or would do, if left to act freely. Keithley v. Civil Service Board (1970) 11 Cal. App. 3d 443, 451.

Under Cal. Civ. Code §1575(2) the weakness of mind can be temporary and need not be incapacitating. Odorizzi v. Bloomfield School District (1966) 246 Cal. App. 2d 123, 131. Under Cal. Civ. Code §§1575(2) and (3) the use of over-persuasion is often accompanied by certain characteristics examples of which might be: discussion of the transaction at an unusual or inappropriate time; consummation of the transaction in an unusual place; insistent demand that the event be finished at once; emphasis on the untoward consequences of delay; the use of multiple persuaders; the absence of third-parties; or statements that there is no time to consult others. Odorizzi v. Bloomfield School District (1966) 246 Cal. App. 2d 123, 133.

Although fraud and undue influence are separate grounds for setting aside a will, and undue influence can be found without any fraud, undue influence also can be a species of fraud or constructive fraud as undue influence and fraud can be closely related and fraud may be considered in determining whether there was undue influence. Estate of Garibaldi (1961) 57 Cal. 2d 108, 114; O’Neil v. Spillane (1975) 45 Cal. App. 3d 147, 158 (undue influence as a species of constructive fraud); Stewart v. Marvin (1956) 139 Cal. app. 2d 769, 775 (undue influence as a species of constructive fraud); Estate of Newhall (1923) 190 Cal. 709, 718; Estate of Ricks (1911) 160 Cal. 467, 480; however, see also, Hagen v. Hickenbottom (1995) 41 Cal. App. 4th 168(a showing of false or fraudulent statement is not a necessary element of undue influence).

The California elder abuse statutes provide yet another statutory definition of undue influence.  California Welfare and Institutions Code section §15610.70 provides the following definition:

15610.70. (a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:

(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.

(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:

(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.

(B) Use of affection, intimidation, or coercion.

(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.

(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.

The facts and evidence in each case need to be carefully evaluated.

Dave Tate, Esq. (San Francisco / California)