A Thin Blue Line: APS and the DA Have Few Resources to Combat Financial Elder Abuse

Seniors are vulnerable to financial elder abuse and are often victimized, but there’s a scarcity of government resources in Sacramento County and elsewhere in California to address the problem.

On May 21, 2019, the Sacramento County Bar Association’s Probate and Estate Planning Law Section presented a program entitled “Helping the Helpless: How You Can Help Adult Protective Services and District Attorney Protect Vulnerable Sacramentans.” The speakers were Debra Larson and Irene Chu, managers with Sacramento County Adult Protective Services, and Frederick Gotha, Deputy District Attorney who heads the Sacramento DA’s Elder Abuse Unit.

Their presentations indicated that our community would benefit if local authorities had greater staffing to combat the rising tide of financial elder abuse. Continue Reading

When Defending Becomes Offensive: California Court Expands No Contest Clauses to Defense of Invalid Amendment

No contest clauses are included in wills and trusts to discourage dissatisfied beneficiaries from challenging the document’s validity. Because enforcement of these clauses results in disinheritance, the California Probate Code limits their applicability. But what happens when a beneficiary defends a trust amendment that is found to be invalid? Can the defense of an invalid amendment be deemed a contest of the original trust?

The California Court of Appeal held last month in Key v. Tyler (2019) ___ Cal.App.5th ___ that a beneficiary’s defense of an invalid amendment to a trust, if made without probable cause, indeed can trigger a no contest clause and result in disinheritance. The court also confirmed that anti-SLAPP motions can be filed against petitions to enforce no contest clauses, a topic we have written on previously. Continue Reading

The Uncertain Role of Court Appointed Counsel in California Conservatorship Cases

A conservatorship, once ordered by a Superior Court judge in California, deprives a person of the right to control his or her financial affairs or person, or both.  When the judge appoints counsel for the proposed conservatee, what is the lawyer’s role?  Are the lawyer’s ordinary duties of loyalty and confidentiality diminished in the conservatorship setting?  Should they be?

These are vexing questions that have led to varying approaches in California’s 58 counties.  We sometimes represent siblings in contested conservatorship proceedings, typically in “parent custody” disputes when siblings are vying for control over Mom and/or Dad.  The approach taken by court appointed counsel is an important factor in how these cases move forward and it would be helpful to all concerned to have a more uniform approach. Continue Reading

Life Insurance Policy Benefits, Once Given Away, Cannot Be Redirected

When a man dies in California, who gets the proceeds of his life insurance policy? The answer seems obvious: the named beneficiaries in the paperwork received and accepted by the life insurance company.

But what if the man gave the policy away during his lifetime? Can he cancel the gift and redirect the proceeds to others?  No, said the California Court of Appeal in Dudek v. Dudek (2019) ___ Cal.App.5th ____. Even though the life insurance company may not have recognized the gift, its recipient can recover the policy proceeds from those who received them. Continue Reading

Probate Code Section 859 Provides a Double Size Hammer

What do you do if someone steals money or property from a trust or estate?  California Probate Code section 850 allows you to ask the Superior Court to order the thief to give the money or property back.  To discourage such theft, Probate Code section 859 provides that the wrongdoer “shall be liable for twice the value of the property recovered,” and may be liable for legal expenses incurred to recover the property, if you can prove the wrongdoer took the asset in bad faith, through undue influence, or through the commission of financial elder abuse.

Like many California statutes, the “twice the value” language of Probate Code section 859 is not crystal clear.  Thankfully, the Fourth District Court of Appeal in Conservatorship of Ribal (2019) 31 Cal.App.5th 519 recently provided guidance as to how to the calculation works. Continue Reading

Probate Code Provides Ground Rules for Who Gets What from Wills and Trusts

Many California will and trust disputes arise from ambiguity in the document with respect to who is entitled to an asset.  Maybe the document was hazy from the start or perhaps circumstances have changed such that the rightful recipient is no longer clear.

Two cases decided in the California Court of Appeal last year illustrate the conflicts that surface over interpreting wills and trusts.  In both cases, coincidentally involving 35 percent shares, the appellate courts overruled the trial courts, nicely illustrating the complexities of will and trust interpretation.  California Probate Code sections 21101-21118, though obscure, can be pivotal in the analysis. Continue Reading

California Plaintiff Who Sues Decedent’s Insurer Can Recover Costs on Top of Policy Limits

It’s generally not easy to sue a deceased person’s estate in California. In most cases, claimants must file a creditor’s claim before proceeding with a lawsuit in the Superior Court, which may first require bringing a petition to open up probate of the decedent’s estate. Claimants must move quickly given the one-year statute of limitations under California Code of Civil Procedure section 366.2.

In traffic accident situations, however, the claimant has a streamlined procedural path if he or she limits the claim to the auto insurance coverage held by the decedent. In such a case, under California Probate Code sections 550-555, the claimant effectively sues the insurance company, with the decedent’s estate only being a nominal defendant.

A recent appellate case from the Third District Court of Appeal, Meleski v. Estate of Albert Holden (2018) 29 Cal.App.5th 616, strengthens the position of California accident victims by allowing them to obtain recoveries in excess of policy limits if the insurance carrier refuses to accept a settlement offer and the claimant then obtains a court judgment in excess of the offer. The decision should incentivize carriers to accept policy limits settlement offers. Continue Reading

Trustees Must Terminate California Trust if Terms Compel Distribution

Cooks in the Kitchen

Are six sibling co-trustees too many cooks in the kitchen? Many California trust disputes arise from disagreements among sibling co-trustees over how to administer Mom and Dad’s trust after the parents have passed. They all have a strong sense of what Mom and Dad wanted, but they don’t agree on what it was.  Thus, trust and estate litigators can be described as “sibling lawyers.”

A recent appellate opinion illustrates such co-trustee conflict and shows the unpredictability of our judicial process. In Trolan v. Trolan (2019) ___ Cal.App.5th ___, the California Court of Appeal addressed issues of trust interpretation and trustee removal in a situation where five siblings were aligned against the sixth. Continue Reading

Free Rider No More — When Can a California Trust Beneficiary Shift Legal Fees to Other Beneficiaries?

American courts (including our California state courts), in contrast to courts in England, do not typically award attorneys’ fees to a lawsuit’s “victor.”  There are, of course, exceptions to this so-called “American Rule.”  Among them is the “common fund” exception, which provides that one who incurs fees winning a lawsuit that creates a fund for others may require those passive beneficiaries to bear a fair share of the litigation costs.  As the word “fund” suggests, the benefit must be a tangible, easily calculable sum of money.  Courts have applied this exception to will and trust disputes where one beneficiary’s litigation causes other beneficiaries to receive a larger inheritance than they otherwise would have received.

But what happens when a trust beneficiary prevails in a lawsuit that doesn’t result in a tangible, monetary benefit but rather one such as removing an incompetent trustee or causing a trustee to prepare an accounting?  May beneficiaries who receive such benefits, but who take no part in the litigation, be required to pay for a portion of the litigating beneficiary’s legal expenses?  Last month the California Court of Appeal, in Smith v. Szeyller (2019) 31 Cal.App.5th 450, answered the question with a tantalizing “very possibly.” Continue Reading

Litigators Should Be Collaborators, Not Lone Rangers

Trust and estate litigation attorneys are “trusted advisors.”  Like estate planning attorneys and other professionals who help clients with wealth management, we are fixers who assist clients with navigating conflict relating to a trust or estate.  While we spar in the probate departments of the Superior Court of California, at the end of the day our main function is to advise clients so they can choose a resolution that fits their needs and is achievable in the situation at hand.

The role of litigator as trusted advisor came to mind last week as I sat at McGeorge School of Law listening to Todd Fithian’s upbeat and insightful presentation on the subject of “Amplifying Your Brand.”  Todd spoke at the Sacramento Estate Planning Council’s annual Estate Planning Forum event which offers outstanding continuing education and serves as a collaboration incubator for professionals in various fields. Continue Reading

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