Jail CellMany trust and estate disputes in Sacramento County Superior Court and elsewhere involve financial elder abuse. Concerned family members may sue the wrongdoer in civil court to recover monetary damages. But what about criminal penalties? When does the “bad guy” (or gal) end up in jail?

While many of my clients are rightfully outraged about the family member or interloper who has stolen money from a vulnerable elder, criminal prosecution is relatively unusual. Our criminal laws, including California Penal Code section 368(d), prohibit defrauding an elder but our prosecutors seldom prosecute those who could go to prison.

Boot Camp_RevisedThe Sacramento County Bar Association’s Probate and Estate Planning Section hosted its first ever “boot camp” program on trust and estate litigation on September 20, 2016. As an alternative to the monthly lunch programs, the Section offered a six-hour seminar at its office at 425 University Avenue in Sacramento. The program drew a full house of approximately 80 attendees, ranging from law students to experienced lawyers.

I presented on will and trust contests in California Superior Court and provide highlights from my talk below.

Emergency1It’s early in the morning, you’ve only just started your first cup of coffee, and your first few sips of java have not yet percolated your brain into full gear. Suddenly, your cellphone vibrates, a call is coming. You do not recognize the number, but you answer anyway. Hello? You have just been provided notice of an ex parte hearing in the probate department. A what?!?!

Hand in the Money Jar

“An ethical estate planning attorney will plan for his client, not for himself.” With those words, the California Court of Appeal recently ripped Southern California attorney John LeBouef for taking advantage “of an elderly and mentally infirm person to enrich himself.” 

In Butler v. LeBouef (2016) 248 Cal.App.4th 198, the appellate court affirmed the invalidation of John Patton’s will and trust, which purportedly left Patton’s $5 million estate to LeBouef.  The ruling illustrates the Probate Code’s prohibition of donative transfers to categories of persons who, because of their relationship with the creator of a trust, might exercise undue influence. The law, in particular, presumes that an attorney who drafts a trust in which the attorney is named as a beneficiary does so without the client’s knowledge and consent. The opinion also shows how contestants can use evidence of other “bad acts” to bolster their cases if those other acts show a common plan or scheme.

Anti SLAPPIn heated California trust and estate litigation, one party’s petition to the probate court often leads the other side to file a retaliatory petition. If Sally petitions in Sacramento County Superior Court to contest Mom’s trust amendment on the ground that Mom had Alzheimer’s disease and lacked sufficient mental capacity to reduce Sally’s share, brother Bob may file a petition to enforce the no contest clause in the trust against Sally and thus seek to intimidate her.

Yet retaliatory claims can be radioactive for those who assert them given California’s “anti-SLAPP” statute, codified at Code of Civil Procedure section 425.16. “SLAPP” is an acronym for “Strategic Lawsuit Against Public Participation.” The statute creates a “special motion to strike” frivolous claims that aim to chill the valid exercise of speech and petition rights. A petitioner faced with an anti-SLAPP motion quickly finds himself on the hot seat. If he lacks evidence to substantiate his claims, the court will dismiss them and require him to pay his opponent’s legal expenses.

Deed TransferCalifornia’s new transfer on death deeds (“ToD deeds”) allow for the transfer of real estate upon the occurrence of death without the need for costly estate planning or probate administration. Codified at California Probate Code section 5600 – 5696, the new mechanism may fill a void in the array of estate planning options, but it is not likely to catch on with traditional estate planning attorneys for the reasons discussed below.

Fresno attorney Mark Poochigian presented a thoughtful and at times critical assessment of ToD Deeds at a Sacramento County Bar Association luncheon in June. At the Summer Education Conference of the California State Bar Trusts and Estate section, only one of the more than one hundred attorneys in attendance acknowledged having prepared one of these new deeds since the law went into effect on January 1, 2016.

Siblings arguingMost California trust and estate disputes are emotionally intense, and none more so than sibling conflicts over the care of an aging parent. Like a child custody fight in the family law context, siblings battle over whether Mom will remain in the home where she lives, move in with one of them, or move to an assisted living facility. They fight over who will manage Mom’s finances and interact with her doctors.

California courts have the tools to resolve these disputes, but struggle to evaluate competing claims of siblings and have a limited attention span to parse through them. Very often, when siblings cannot find middle ground, Mom’s care and finances will end up in the hands of a third party conservator and trustee, after many thousands of dollars in legal fees.

Money TargetSpeak promptly or forever lose your rights. Creditor claims are an intricate area of California probate law that fills chapters in legal treatises. Fail to comply with the nuanced rules and you lose your claim against a decedent’s estate even if liability is otherwise rock solid. But what is a creditor claim and when is it required?

A creditor claim is a demand for payment that must be filed with the probate court and served on the personal representative (e.g., executor) of a decedent’s estate within a specified timeframe. Presentment of a creditor claim (and its rejection) is required before a lawsuit may be filed against the decedent’s estate. Moreover, if there is no pending probate case in the Superior Court, the creditor may have to take the initiative by opening a probate proceeding so as to create a case within which to present a claim.

Silhouette of Helping HandsGuest author Karina Stanhope, a Downey Brand associate, contributes today’s post.

A recent New York Times article shined new light on Britney Spears’ conservatorship. Well known for her instant rise to stardom as a Disney Mouseketeer, Ms. Spears’ fame as a young, up-and-coming pop star in the 1990s was boundless. Little less than a decade later, however, media outlets and tabloids provided a darker view of what Ms. Spears’ life had become. The more famous Ms. Spears became, the less control she appeared to hold over both her private and public life. Ms. Spears’ escapades worried fans and family alike, and in 2008, her father, James Spears, took legal action. A Los Angeles court appointed Mr. Spears conservator over Ms. Spears’ person and estate, with a lawyer aptly named Andrew Wallet serving as co-conservator over her estate.

CrownPrince died in April 2016 without a will or trust, according to documents recently filed by his sister in the Carver County District Court in Minnesota. Perhaps a will or trust will surface eventually, as occurred with Michael Jackson’s estate. However, the revelation in “The Morning Papers” that Prince died intestate (legalese for no will or trust) provides an occasion to muse on the “Controversy” that can erupt in California courts when a person of even moderate means lacks an estate plan, while recalling several song titles along the way.