Estate of Wilson: Does a Domestic Partnership Agreement Survive a Subsequent Marriage?

In Estate of Wilson, (Dec. 13, 2012, A133952) ___ Cal.App.4th ___ [2012 Cal.App. Lexis 1264], the Court of Appeal, First Appellate District, Division Two, issued a ruling in a dispute over the survivorship of a domestic partnership agreement after a subsequent marriage.

Decedent, Dr. Philip Timothy Wilson (“Wilson”), and Petitioner/Appellant, Antipas Johnlang Konou (“Konou”), signed a “Pre Registration Domestic Partnership Agreement” (“Agreement”) and then registered as domestic partners. Included in the Agreement were “waivers of any rights, claims or interest in the future property, income, or estate of the other, and [the agreement] required a signed writing to amend or terminate th[e] agreement.” Two years later, during the brief period allowing it in California, the couple married. Then Wilson died.

Konou filed an omitted spouse petition claiming an interest in Wilson’s estate. The trial court denied the claim finding that, although Konou was an omitted spouse, the Agreement remained valid after the marriage, and Konou waived any interest in Wilson’s estate.

Konou appealed arguing that there was no prenuptial agreement and that the marriage license constituted a writing terminating the Agreement.

The appellate court affirmed the trial court’s order.


                                    _________________________________
                                    John T. Anderson, Section Chair
                                    LB Bar Assoc. Estate Planning, Trust, and Probate Law Section
                                    Certified Specialist in Estate Planning, Trust, and Probate Law by the
                                    State Bar of California Board of Legal Specialization

Copyright © 2012 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2012.12.27 Estate of Wilson.docx

Some Important Updates from the 2012 USC Trust & Estates Conference

1.    The California State Board of Equalization (“BOE”) must give information on real estate transfers to the IRS.

The BOE keeps records on transfers and the IRS was seeking the information on transfers from January 1, 2005 through December 31, 2010.

In 2011, the district court denied an ex parte petition by the IRS for transfer records. Now, in 2012, the district court granted the IRS’s motion for the documentation.

The effect on our clients: records on parent-child and other transfers will be available to the IRS. The IRS can then cross-reference whether or not gift tax returns were filed consistent with Primary Change of Ownership Reports.

2.     Retirement and IRA Beneficiaries.

In order to maximize the stretch-out of funds to be paid-out of an IRA, it is not enough to name a trust as beneficiary and the trust have beneficiaries. Each beneficiary will have to use the oldest beneficiary’s life expectancy for payout.

To maximize the stretch-out under the “separate account” “rule,” you must name each of the separate sub-trusts for the individual beneficiaries, as a beneficiary on the beneficiary designation form. IT IS NOT SUFFICIENT TO JUST NAME THE SINGLE TRUST ITSELF!

A named beneficiary must create a separate account by December 31st of the year of death of the IRA owner in order to use his or her life expectancy for mandatory distributions; if not, the individual beneficiary will have to use the life expectancy of the oldest beneficiary for required distributions.

3.      Who inherits your iTunes library? See Quentin Fottrell, Who Inherits Your iTunes Library? Why Your Digital Books and Music May Go to the Grave, Wall St. J. (Aug. 23, 2012). (Article | Video)

A person who had 10,000 hardcover books and the same number of vinyl records could bequeath them to another person, but passing on iTunes and Kindle libraries would be much more complicated.

4.     Research Tips: Google Scholar—www.scholar.google.com. Good for finding cases. Click on “Legal Documents” and search by party name and volume number or . . . . For cases related to particular statutes, try searching by something like “Probate 2013.” It will also find unpublished decisions citing the case or statute.

5.     California Probate Code section 15401 contains provisions for a settlor to revoke a trust.

A NEW SUBSECTION (effective January 1, 2013)- California Probate Code section 15401, subsection (b)(2), will provide that the settlor may grant to another person, including the settlor’s spouse, a power to revoke all or part of the trust contributed by the settlor whether separate or community property and regardless of whether the power is exercisable during the lifetime of the settlor, or continued after the death of the settlor.

The existing California Probate Code section 15410 contains provisions for disposition upon revocation. Effective January 1, 2013, subsection (a) has been amended as to revocation during life, and subsection (b) has been added to set forth distribution if revocation is after the settlor’s death.  

6.     California Probate Code section 2134 is amended (effective January 1, 2013) to apply to a trust to avoid ademption (extinction of a gift) when specifically bequeathed property is sold by a successor Trustee and the Settlor is incapacitated. The beneficiary will get a general pecuniary gift in an equal amount to the extent trust assets exist.

7.      There are gift and estate tax issues that occur January 1, 2013 due to language of the law that reinstates the pre-2001 law as if the 2001 Act “had never been enacted.” What does that mean? No one knows for certain.

Is there the potential “clawback” or “recapture” as estate tax of the gift tax avoided on large gifts in 2011 and 2012?

It will take an act of Congress or court decisions to clarify this. Most experts do not believe the “clawback” or “recapture” will occur, but what other effects are there of the language as if it “had never been enacted” might there be?

What if the beneficiaries of the lifetime gifts are different from the deathtime beneficiaries?  The additional tax from the lifetime gifts might be collected from the estate going to people who did not receive the lifetime gifts. To the extent that donees of lifetime gifts are also beneficiaries of deathtime bequests, a trust provision that requires that taxes related to the “clawback” or “recapture” are to be paid from the distributable share of these individuals might be appropriate.

What will be the effect on 26 U.S.C. § 6166 installment payment agreements? If payments are still due, will the balance now be due immediately?

8.     Healthcare Directives, regardless of the format you use, should be made effective immediately so that the named agent can have access, under the HIPAA provisions, to records determining incapacity. Otherwise you might face the nightmare of attempting to prove incapacity without access to medical records.

A doctor may refuse to give you a letter declaring incapacity.

9.     Unless an order appointing a conservator SPECIFICALLY suspends or revokes a Power of Attorney for Finances or Assets or a Durable Power of Attorney for Healthcare (which  means the petition must contain a request to do this AND, probably, the agent must be given notice of the hearing) those documents remain in effect!

These are some things for you to consider for January 1, 2013.


                                          _________________________________
                                          John T. Anderson, Section Chair
                                          LB Bar Assoc. Estate Planning, Trust, and Probate Law Section
                                                        Certified Specialist in Estate Planning, Trust, and Probate Law by the
                                                        State Bar of California Board of Legal Specialization

Copyright © 2012 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location:C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2012.12.18 USC Trust and Estate Conference Important Updates.docx

California Probate Court Consolidation Update & California Elder Abuse Issues: Temporary Restraining Orders

The Estate Planning, Trust, and Probate Law Section of the Long Beach Bar Association met on December 6, 2012. 

Judge Paul opened the meeting by indicating that it was not possible to address all of the issues raised by the possible consolidation of Probate cases to downtown Los Angeles.  This is a long process that is still under consideration.  January and February 2013, at least, we expect to continue in the district courts and likely through June.  A large number of issues need to be dealt with to determine if the proposal to consolidate is the best answer to the financial issues of the court or if there is a better way.  If there is another way, or if some of the issues to be resolved are insurmountable, is there an alternative?  Are there issues which have not even been considered? (Click here for the latest update on the California Probate Court Consolidation as of March 21, 2013)

Next, our speaker, Keith Wisbaum of Robinson and Wisbaum, one of the leading attorneys in the Elder Law area, spoke to us on elder law issues and temporary restraining orders (“TROs”).

He says that water is hot at 211 degrees, but at just one degree higher, it boils.  It is the same with elders.  There are a lot of issues surrounding elders and not all take court action to resolve, although some do.  The Elder Abuse Restraining Order is a fast and unique remedy.

The TRO can be used to stop abuse, to restore relationships that have been splintered over perhaps many years, provide medical interventions, move puzzle pieces around, and allow strategic intervention.

California Welfare and Institutions Code section 15610.07 defines what “[a]buse of an elder or a dependent adult” means, and it allows a huge number of people to file for a TRO.  The forms are the easiest part of the process.

Before you even start with a family, get behind the scene–Is the situation fixable?  Many things fly right under the radar.  Dad died.  Mom has limitations and the deadbeat son has nothing to lose in getting mom to sign for a loan and running off with the cash.  There is a lot of dirty stuff going on.

A TRO is just a piece o f paper.  Make sure you are not making a bad situation worse.  Quietly piece the information together.  How is the senior being hurt?  Segregated, denied medical care?

In many situations, the parent is no longer able to parent the way they used to, but they are still Mom or Dad.

Follow the money.  Is there a lot of “fraudulent emotion” going on?  Is someone being nice only to get to the money?  The abused person often will not be complaining. The senior may even be comfortable and think the bad situation is better than the alternative.  What is really in the best interest of the senior?  What does the senior want?  What does your gut tell you?  What can you solve by being creative?

The TRO is good for up to 21 days and the permanent restraining order is good for up to 5 years.  If you pursue a restraining order, can you couple it with agreements for visitation?  Can you get the abuser to cooperate?  Can relationships be restored to help through more than the immediate problem?  Can we avoid embarrassment to the senior and the abuser who may already be pretty well down in life?

Be honest with your client.  These are risky and unpredictable and will have a long-term effect.  These people may not realize that this type of situation has the ability to explode like a hand grenade.

The client who is the good guy may lose-out in the long run.  No good deed goes unpunished.  The senior may end-up hating the honest child, even if that child “wins.”  If the client does not understand your position and is not on board with all of this, no check they might pay you is big enough. 

You need names of family, neighbors, friends and care providers to gain insight into the situation and formulate possible creative solutions.

There are conditions under which you can get TROs without notice.  These require preliminary showings of harm to the senior.  Is the abuser in the house?  Is the abuser the one that provides the meals, care, medication?  Who is going to take care of those things if the abuser is tossed-out?

Sometimes a cover letter can be served along with the TRO explaining to the abuser that you would like them to call you and discuss the problem and what can be worked-out without court, lawyers, or disruption.  If they do not reply, you can call them yourself.  Let them know the issues that are of concern, and that they can get a lawyer or try to work through some solutions.

All of this is post-TRO, but before any further court hearings in an attempt to get some solutions before being back in court.  Sometimes TROs are extended and permanent hearings are postponed if agreements are being worked-on.

Courts love agreements.  TROs can be extended over and over (he has had one extended over a year in total, 21 days at a time, 3 court appearances) while things with the abuser are addressed and improved, and agreements were reached.


       
                _________________________________
              John T. Anderson, Section Chair
                 LB Bar Assoc. Estate Planning, Trust, and Probate Law Section
                 Certified Specialist in Estate Planning, Trust, and Probate Law by the
                       State Bar of California Board of Legal Specialization

Copyright © 2012 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2012.12.06_Wisbaum_Elderlaw_TROs.docx

Upcoming Brown Bag Luncheon

Below is the notice of our upcoming Brown Bag lunch in Dept. 4.  Mr. Wisbaum has spoken to us before and he has great insights into one of the alarming and growing problems in our society today...the abuse of our elders.

Also, we may expect an update from Judge Paul on the impending transfer of all Probate Dept. matters (except maybe Lancaster and a few select conservatorship cases) to Los Angeles Central Court between now and the end of June.  A lot to be worked out between now and then.  They will be adding a Judge to their full-time staff of 3 judges to bring them to four.  Numerous Courthouses are to be closed.  Yes, entire courthouses.  So a lot is happening and our world will be changing.  See you at the meeting if you want to stay on top of this.  

                                    ______________________________
                                              John T. Anderson, Section Chair
                                              Certified Specialist in Probate, Trust and Estate Planning
                                              By the California State Bar Board of Legal Specialization

LONG BEACH BAR ASSOCIATION

ESTATE PLANNING, PROBATE & TRUST SECTION

BROWN BAG LUNCHEON

WHEN:        Thursday, December 6, 2012 – Noon to 1:00 P.M.

WHERE:        Long Beach Superior Court – Dept. 4 (Second Floor)

                415 W. Ocean Blvd.

                Long Beach, CA 90802

TOPIC:        Elder Abuse Issues

SPEAKER:    Keith D. Wisbaum, Esq.

                                       Robinson & Wisbaum

MCLE:        1 hour credit & specialist Credit

C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2012.11.23 Upcoming Brown Bag and More.docx

WARNING TO ATTORNEYS FROM THE STATE BAR OF CALIFORNIA

A Warning from the State Bar of California: 
Disciplinary Charges Filed Against Attorneys Accused of Falsifying MCLE Credit Records

The State Bar of California has stepped up its auditing of California attorneys’ compliance with the requirements for earning Minimum Continuing Legal Education (“MCLE”) credits. The State Bar of California has now filed disciplinary charges against three California attorneys who falsely reported that they had satisfied the MCLE requirements.

Click here to view the full article posted by the State Bar of California.

This should be a warning to all of us to keep records and comply with the State Bar of California’s requirements for MCLE credits. Click here to view those requirements.

                                                       
                                        _________________________________
                                        John T. Anderson, Section Chair
                                        Certified Specialist in Estate Planning, Trust, and Probate Law
                                        by the State Bar of California Board of Legal Specialization

Copyright © 2012 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location:C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2012.10.15 A Warning from the State Bar of California.docx

Lodging a Will on Death

California Government Code §70626(d) now provides for courts to charge $50 to lodge a Will.  No more free lodging of Wills!

California Probate Code §8200(a) requires that the Custodian of the Will lodge the Will within 30 days of learning of a decedent’s death. Section8200(b) makes the Custodian of the Will who fails to lodge the Will “liable for all damages sustained by any person injured by the failure.”

The requirement to lodge the Will has been with us for a long time.  But, the filing fee is a new fundraiser for the court.

This has started a discussion with no established answers.  Cases will come down and you will have to make some determinations based on your interpretation.

Probate Code §§734 and 8200 read as follows:

Probate Code §734: 

    (a)    In cases not governed by subdivision (b) or (c), after the death of the depositor an attorney may terminate a deposit by personal delivery of the document to the depositor’s personal representative.

    (b)    If the document is a will and the attorney has actual notice that the depositor has died but does not have actual notice that a personal representative has been appointed for the depositor, an attorney may terminate a deposit only as provided in Section 8200.

    (c)    If the document is a trust, after the death of the depositor an attorney may terminate a deposit by personal delivery of the document either to the depositor’s personal representative or to the trustee named in the document.

Probate Code §8200:

    (a)     Unless a petition for probate of the will is earlier filed, the custodian of a will shall, within 30 days after having knowledge of the death of the testator, do both of the following:
   
        (1)    Deliver the will to the clerk of the superior court of the county in which the estate of the decedent may be administered.
   
        (2)    Mail a copy of the will to the person named in the will as executor, if the person’s whereabouts is known to the custodian, or if not, to a person named in the will as a beneficiary, if the person’s whereabouts is known to the custodian.
   
    (b)    A custodian of a will who fails to comply with the requirements of this section is liable for all damages sustained by any person injured by the failure.
   
    (c)    The clerk shall release a copy of a will delivered under this section for attachment to a petition for probate of the will or otherwise on receipt of payment of the required fee and either a court order for production of the will or a certified copy of a death certificate of the decedent.
   
    (d)    The fee for delivering a will to the clerk of the superior court pursuant to paragraph (1) of subdivision (a) shall be as provided in Section 70626 of the Government Code.  If an estate is commenced for the dependent named in the will, the fee for any will delivered pursuant to paragraph (1) of subdivision (a) shall be reimbursable from the estate as an expense of administration.


One person shared, “My practice is to lodge any original document purporting to be a Will.  Even if a Will appears to have been revoked, the later Will might be held invalid.  If the prior Will is lodged, the record will be clear.”

Another person replied:

I would argue that after a Will has been revoked, it is no longer a Will; it is just a set of papers.  I would not believe the statute requires that it be lodged.  When it was free to lodge a bunch of documents, [the opinion stated above] would be a safe one (although maybe the testator would have preferred the older, revoked Will never be made public). 

Now that a fee is imposed, I will choose to lodge only the “Last” Will, since I interpret that it is the only Will.  Of course, I will also lodge all Codicils.  (By the way, if they are going to impose a $50 fee for each of those too, we are well advised to draft whole new Wills for clients, even for the smallest of changes.  Well, no . . . not necessarily.)

If at some stage, that fresher, lodged Will is tossed out on grounds of incapacity etc. and the earlier Will springs back into existence as the new “Last” Will (under the principle of Dependent Relative Revocation), then I would lodge that one at that stage, since I would then have knowledge of my possession of that Will.  The date of my knowledge that those papers constitute a Will would be from the date of my knowledge of the Court Order that rules the fresher Will invalid (and thus the revocation clause thereof also invalid).

And yet another observes:

Other than the new $50 filing fee, the issues you have raised have always been there.  The amendment is merely a revenue enhancer.  The risk to the custodian under 8200(b) is if a Will prior in time is offered for probate due to lack of knowledge of the later non-lodged Will.  If you have custody of the originals of all the recent Wills, I am not sure what the damages would be.

So, the question might be, if you have a later Will, why file and pay fees for earlier Wills unless the later one is set aside?

Study the issue for yourself before you decide what you are required to do.

                _________________________________
                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and Estate Planning
                By the California State Bar Board of Legal Specialization

Upcoming Brown Bag Luncheon

LONG BEACH BAR ASSOCIATION

ESTATE PLANNING, PROBATE & TRUST SECTION

BROWN BAG LUNCHEON

WHEN:         Thursday, November 1, 2012
                       Noon to 1:00 P.M.

WHERE:       Long Beach Superior Court
                       Dept. 4 (Second Floor)
   
TOPIC:          2012 Legislative Updates for 2013

SPEAKER:    Jim Birnberg, Esq.
                       Oldman, Cooley, Sallus, Gold, Birnberg & Coleman, LLP

MCLE:          1 hour credit & specialist credit

COST:           Free

Most Common Estate Planning Mistake: Improper Vesting of Title

http://www.motivatingwords.net/wp-content/uploads/2010/08/mistake2.jpg

I get called upon to review many estate plans previously prepared by other attorneys. Other than some plans which are so ineptly prepared, the number one mistake I find is improper vesting of title so it will be an asset of the trust.

Here are a few guidelines to avoid this mistake:

1) The trust cannot hold title

2) Title should be in the name(s) of the trustee(s) of the trust pursuant to the terms of the trust.

3) The name(s) of the trustee(s) should be just as he/she/they are listed in the trust (full name, or middle initial, or …) and the name of the trust should be spelled out EXACTLY as it is set forth in the trust.

4) The deed and appropriate assessor forms must be sent to the Recorder.

                              _______________________________

                        John T. Anderson, Section Chair

                        Certified Specialist in Probate, Trust and Estate Planning

                        By the California State Bar Board of Legal Specialization

Copyright © 2012 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2012.07.10 Most Common Estate Planning Mistake.docx

Post-Death Trust Administration: Reasonable Fee for Trustee

I, along with others, were recently asked what a reasonable hourly fee is for a trustee for a post-death trust administration.

The consensus, and what I advise my clients, is as follows:

For the non-professional, I tell them to keep a strict record of their time and to figure somewhere between $25 and $50 per hour (a typical fee for a professional trustee with training, bonding, and expertise is around $100 per hour). Then I advise them to look at the complexity of the issues they were required to deal with. The more straight forward everything is and the more helpful and cooperative everyone is, to lean toward the lower figure and to a higher number if the opposite is true. I tell them to realize that, if they are a beneficiary, part of the fee is coming from their own, otherwise income tax- free funds, and the fee now becomes ordinary income for income tax purposes.

Whichever rate they choose to compute the fee, I then tell them to compare it to a fee of one percent of the trust estate.  If they are under that figure, they are in the ballpark. If over, they need to determine how they can rationalize the fee in light of the fact that a judge, who might be called upon to review it, will examine an excessive fee very critically.

I tell trustees that they are probably also fine taking a flat one percent fee that should be set forth in their accounting, but they might also be creating a situation that will be more likely to cause a court review at the request of a beneficiary. For example, it probably will not look good to take a one percent fee on a trust estate with few debts and the only asset being a $1M CD.

In any event, the rate charged for the fee; the basis for the fee; and, the final amount, should all be set out and explained in the accounting to beneficiaries.

                                           _________________________________

                                           John T. Anderson, Section Chair

                                           Certified Specialist in Probate, Trust and Estate Planning

                                           By the California State Bar Board of Legal Specialization

Copyright © 2012 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2012.07.09 Post- Death Trust Administration Reasonable Fee for Trustee.docx

I’ve Got a Secret: Confidentiality and the PVP Attorney

Our speaker at the June 8, 2012 meeting of the Estate Planning, Trust, and Probate Law Section of the Long Beach Bar Association was the highly regarded Samuel D. Ingham, III, Esq.  His topic, which qualified for 1 hour of MCLE Ethics credit and Estate Planning and Probate Specialization Credit, was “I’ve Got a Secret: Confidentiality and the PVP Attorney.”  Judge Paul, Darcy Horton, and Ellen Teguh were all present and contributed to the discussion from the court’s viewpoint.


Confidentiality:  Keep the proposed conservatee’s information out of the public’s eye.  The court has to balance interests between the proposed conservatee’s right to privacy and the public’s right to access.


There has been an evolution from the court appointed attorney (PVP or Probate Volunteer Panel attorney) being the “eyes and ears of the court” to being an advocate–kind of a public defender-for the conservatee.


We are kind-of in the middle of these two views at present, but I (your scrivener) would error on the side of being the client’s advocate.


Conservatorship of Schaeffer (2002) 98 Cal.App.4th 159 [119 Cal.Rptr.2d 547]–PVP filed report with the court and did not serve it on anyone.  The Court of Appeals overturned and said the report has to be served on the other parties.  Left unsaid was whether the report had to be made a part of the court file.


P.C. §1051 continues the prohibition on ex parte communications by the PVP.  Once in a blue moon, it might be justified.


On occasion, an ex parte letter from a neighbor or other person comes-up requiring the court to exercise discretion and, for example, send the court investigator out.


Local Rule 4.127(a) requires a PVP Report.  Care must be used regarding what private information (i.e., medical, financial, identification numbers, explosive facts or allegations) goes into the report or should be kept out.


We are first attorneys, and next, court-appointed counsel.  So. E.C.§954, regarding the client precluding disclosure of information and other rules apply.  It may be helpful for the bench officer to speak directly to the proposed conservatee to obtain information that you cannot/should not elicit.


The PVP Attorney could/should assert attorney-client privilege before answering questions concerning conservatee’s private information.


One judicial officer, of the extreme advocacy view, removed a PVP Attorney and suspended a hearing when the PVP was allowing the conservatee to discuss what medication the proposed conservatee was on.


P.C. §1471, under which we are usually appointed, indicates you are appointed to represent the interests of the client.  The client has all rights and remedies under the Constitution and a Conservatorship represents a possible removal of many constitutional rights.  You must act to preserve those rights.


You are not immune from being sued as a court-appointed attorney.  You must carry E&O insurance to protect yourself.


Documents you file are indexed and available to the public at the courthouse. 


Certain forms, labeled “Confidential” by the court go into a separate file and are not, generally, available to the public.  PVP reports are not in that file; they are available in the Public file.


What can you do with information you think the court needs, but the client will not agree to release?


1.    Court testimony.  They could be cited to appear.  Defer questioning to the bench officer.


2.    Lodge a report CRC 8.46(b)(3) temporarily deposited (lodged) but not filed (e.g., financial or medical records).  Do this in the courtroom, NOT AT THE FILING WINDOW, in a sealed envelope marked “Lodged-Not Filed.”  A PVP Report may have attachments you do not want reproduced, indexed, etc.  THEN, have it returned at the close of the hearing.  Lodging puts a burden on the court and the clerk as to how to handle it, and mistakes are made.


3.    Sealing of a file is an option.  Pre-1999, you requested a sealing and the file was completely sealed.  NBC Subsidiary, Inc. v. Superior Court (1999) 20 Cal.4th 1178 [86 Cal.Rptr.2d 778, 980 P.2d 337] changed that.  In that case, and CRC 2.550 & 2.551, which track the case, the Supreme Court found that the bench officer must do a balancing act, with five specific findings that the court must rule on in order to seal a matter.  You must, in your moving papers, go through each finding that must be made.  Also, put those specific findings in the Order or another judge may order the matter unsealed. 


4.    Sealing v. Redacting.  Which is the least restrictive method is what a court may consider.


5.    Closing the Courtroom.  There has to be a reason (such as testimony which is extremely damaging or humiliating to an individual).


As an advocate, you have the responsibility to look at all of this.  You have the responsibility to look around the courtroom and consider: are there issues requiring the courtroom to be closed or certain individuals excluded?


Fees:    It is contemplated that a PVP Attorney will get paid at the end of the matter.  However, some circumstances dictate, economically, for payment on an ongoing basis.  The request may be in your report, as a separate Fee Petition, or as an oral request. A large fee request should be by a separate, noticed petition.  A smaller fee request does not warrant a separate petition.  Failure to give proper notice is a basis for denying a fee request.


CRC 7.702, 7.751 sets forth what must be in a fee request.  One is a detailed time bill (some of which may need to be redacted if confidential). 


Not just a bill, but also a narrative as to why you should get paid.  Don’t be humble.  If you have expertise, set it forth.  Spell-out how you benefitted the conservatee.  Sell the judge (in a short, sweet, succinct paragraph) on why you deserve this fee.


Use care with social networking and listserves, guarding what you or your client expose.


JUST A NOTE: We now have authorization to give specialization credit, as well as the usual MCLE credit, for meetings of the Estate Planning, Trust, and Probate Law Section of the Long Beach Bar Association.




                _________________________________
                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and Estate Planning
                By the California State Bar Board of Legal Specialization

Copyright © 2012 by John T. Anderson
All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.
File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2012.06.15__Tidbits_Ingram_PVP.docx

The Standard of Capacity to Amend a Trust

The Orange County Bar Association Trust & Estate Section met on June 13, 2012.  The discussion was about Anderson v. Hunt (2011) 196 Cal.App.4th 722, on the issue of the Standard of Capacity to amend a trust.  Is the Amendment complex or in the nature of a Will?  What is the standard for capacity to amend a trust?  A will?


The speaker, John Belcher, Esq., represented the Petitioner in Anderson v. Hunt.  He is a Plaintiff’s attorney and not a Probate attorney.  There was an A/B Trust.  Mom died, Dad lived.  They are into the case $80,000 in costs (which the court has, thus far, refused to approve payment on as the case continues on appeal) and, I believe he said, up to$500,000 in fees thus far.  Joint tenancies by Dad with Defendant, who he referred to as the “abuser,” were set aside for lack of Dad’s capacity.  The living trust was considered complex; but, five amendments were considered simple/will substitutes, benefitted Defendant Abuser, and were upheld on appeal.


The Appellate Courts said that the standard for simple amendments will be the standard for a Will; so, the “Elder Abuser,” Defendant, won.  Forty-one court appearances or hearings were made.  Jury trial was waived.


The Defendant may end up with $1.7 million if the case stands, as some assets roll over into the Trust.


Dad was presumed to have capacity.  Defendant was on the DPAHC and had all the medical records.  Sixty-one subpoenas later, they were getting records they needed on capacity.  Dad had thirty bottles of vodka in the trunk of his car.  He was drinking a bottle per day.


When son took Dad out, Defendant was constantly concerned Dad was changing his estate plan.  So, Defendant took him to an attorney where he said, “I don’t know if I signed estate documents, but if I did, I want things back as they were to Pauline Hunt.”


Dad hadn’t filed tax returns in eight years.  When he got out of a care facility, Defendant took him to banks to change accounts to Joint Tenancy with her. $600,000 was transferred.  One account they tracked down was an inheritance Dad received from an aunt that defendant put directly in an account in her name.


Attorney Belcher said that the trial court found that Dad did not have capacity to change benefits to Defendant Hunt; and, even if he did, there was undue influence.


There is no case law defining complex vs. simple Trust amendments.  The Appellate Court called the Amendments simple, more in the nature of a Will!  There are protections with execution of Wills that don’t exist for Trusts, and thus capacity requirements are different.


The Appellate Court applied P.C. §6100.5, the capacity for a Will, to the Trust Amendments.  Mr. Anderson actually restated the Trust and changed the Trustees.  Anderson ignored the A/B issues and treated the trust as a standard trust.


Attorney Belcher says, neither side raised or briefed the issue of the Trust amendments being “complex” or “simple” and different rules applying.  The Appellate Court raised this issue on its own and did not permit new briefs on that issue.


How does this affect us?  Is capacity there if you can show a person understands a part of the document?  A Trust is a contract and it is evaluated as such.  You must understand the terms and various types of contracts may be treated differently.  


What is going to happen is:


(a)    How do you decide in your office if the client has the capacity to do what he says he desires?


(b)    How much litigation is there going to be over this issue as         Trusts are amended and the client has the lesser capacity for a Will–was the change simple, so it works; or complex, and the amendment fails?


Where are the guidelines?  Would you be better with the protections or a Will, with witnesses?



JUST A NOTE: We now have authorization to give specialization credit, as well as the usual MCLE credit, for meetings of the Estate Planning, Trust, and Probate Law Section of the Long Beach Bar Association.




                _________________________________
                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and Estate Planning
                By the California State Bar Board of Legal Specialization

Copyright © 2012 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2012.06.14_Anderson_v._Hunt_Capacity.docx

A DISCUSSION ON POWERS OF APPOINTMENT

A Power of Appointment should not be confused with a Power of Attorney or the positive aspects of keeping a calendar of appointments. A Power of Attorney is a crucial estate planning tool in many situations but not all of your calendar of appointments are crucial to you being where you are supposed to be when you are supposed to be there.

A Power of Appointment, in a Will or Trust, gives the authority to a person, named in the document, to determine the ultimate distribution and terms of distribution in a manner and within the limits specified. The Power of Appointment may be very broad and could cause, as a result of the Power (even without it being exercised) the inclusion of the value of the estate in the estate of the agent named to exercise the Power. Or the Power of Appointment may be limited to a specific class of beneficiaries (e.g., “among my children living at the time of my death”), in which case the assets to be distributed are not included in the agent’s estate, by virtue of the limited Power of Appointment.

The document providing for the Power of Appointment should set forth the manner in which the Power may be exercised (in any writing referring to the Power; in a Will; in their last Will; in their Will admitted to probate).

The document providing for the Power of Appointment should also specify whether the Power is general or limited; and, inclusive or exclusive.

In an Appellate Court decision from the Fourth Appellate District, the Court issued a decision overturning a trial court decision concerning a Power of Appointment. In Sefton v. Sefton (May 31, 2012, D059211) ___Cal.App.4th. ___ [2012 Cal.App. Lexis 643], out of San Diego Co., the Court had to decide what law to apply to the exercise of a Power of Appointment which was exercised to exclude one beneficiary from inheriting. Common law was in effect when the document creating the Power of Appointment was executed and when the creator of the Power of Appointment died. California had a statute on Powers of Appointment and it was later rescinded. After the death of the creator of the Power, but before the exercise of the Power of Appointment by his son, a new law was put in effect—Prob. Code § 652. This law was in effect when the holder of the Power wrote his Will referring to the Power of Appointment and excluding one person in the class of beneficiaries from inheriting. Several years later he died and the exercise of the Power of Appointment became irrevocable.

WHY IT MATTERS

In his Trust of 1955, Grandpa (who died in 1966) left a life estate to his son (“Father”) with the remainder to his three grandchildren living at the time of his death and subject to a Power of Appointment to Father, the father of the three children. One of the children was from Father’s first marriage and two were from his later marriage. Father died in 2006 leaving a Will exercising the Power of Appointment (over assets which may total several hundred million dollars) to exclude his first son.

Excluded son contested the exercise of the Power of Appointment to exclude him. The trial court sustained a demurrer by the Trustee and other heirs, without leave to amend. Thus adopting the position that the 1970 law, with retroactivity, applied, and was “inclusive,” allowing the total exclusion of a beneficiary. The Trustee and other beneficiaries also argued that the petition by the eldest son should be denied as violating the three year statute of limitations. They wished to start the three years from the date Father exercised the Power of Appointment by mentioning it in his Will. The Appellate Court dismissed this argument stating that their father was still alive at that time and thus excluded son number one had no claim against his father then. The exercise of the Power of Appointment could have been changed at anytime up to his death. Only at his death was the exercise irrevocable, commencing the statute of limitations.

The Court discussed the retroactive effect of the 1970 Act and the need to carry-out the clear intention of the Grandfather, with the execution of his estate plan and his death, coming prior to the 1970 legislation.

Estate of Sloan (1935) 7 Cal.App.2d 319 [46 P.2d 1007] was the law in effect when the estate plan was executed and when Grandpa died. Estate of Sloan applied the exclusive rule regarding Powers of Attorney which means all of the members of the class of beneficiaries must receive what the court determines is a “substantial” portion of the estate. Contrary to that rule, the 1970 statue was “inclusive” and allowed the exercise of the Power of Appointment to exclude some beneficiaries, benefit some over others, or set terms on the inheritance.

The Appellate Court found that the law in effect when Grandpa executed his estate plan, and when he died, which he is presumed to have known and depended on in his estate plan, would apply.

Read the Sefton case for a discussion of Powers of Appointment; retroactivity; and, inclusiveness versus exclusiveness.

                                 _________________________________
                                 John T. Anderson, Section Chair
                                 Certified Specialist in Probate, Trust and Estate Planning
                                 By the California State Bar Board of Legal Specialization

Copyright © 2012 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2012.06.14 A Discussion on Powers of Appointment.docx

LIFE SUPPORT DECISIONS IN THE SETTING OF A CONSERVATORSHIP

The following is an edited version of an exchange on a legal listserv.  This brings up a point raised by an expert at our last Long Beach Bar Assn. Probate and Trust Section Brown Bag Lunch.  Sam Ingham, III, Esq., an expert and friend, commented on the dangers of putting anything regarding a client or a case on a listserv or social networking site.  In addition, be aware that these same sites are available and may be seen by opponents or court personnel.  Having said that, the following inquiry came up on a listserv.  The response, edited by me and published with permission, is meant to alert all of us to issues which may arise when confronted by life support issues during a conservatorship.


The inquiry:  I have a client who is the conservator of her mother.  The mother has recently come down with pneumonia.  She had to be placed on life support.  My client “knows” that her mother would not have wanted to be on life support. She does not have any documents stating that but that is how her mother dealt with their father when he passed.  The order in the conservatorship has an attachment that states: Court granted 2355 powers with notification to XXXXXXXXXX before withholding life-sustaining medical treatment.  We have called XXXXXXXXXX and sent him an email, but while I am waiting for his response, I wanted to check and see if any of you knew if there was something other than giving notice to XXXXXXXXXXXX we would have to do before taking the conservatee off of life support?


The response from longtime friend, peer and highly esteemed Orange County attorney Ernest Hayward: 


The issue you now present is far too important for me to ignore your inquiry. The facts you present are that the conservatee has no known and executed Advance Health Care Directive or POLST (Physician’s Order for Life Sustaining Treatment), nor an older form Durable Power of Attorney for Healthcare, nor a Living Will, nor any signed document expressing the wishes and intentions of the conservatee on these important end-of-life issues.


Even with Probate Code Section 2355 powers (exclusive authority vested in the conservator for medical treatment), I would NOT advise a client of mine to either refuse life-sustaining treatment recommended by a treating physician, and certainly not to WITHDRAW such life-sustaining treatment (a virtual death sentence in most cases) without specific court authority and the issuance of a court order, pursuant to a Petition for Instructions, given on noticed hearing, not only with notice to the court-appointed attorney for the conservatee, but to all of the conservatee's relatives within the second degree, including spouse, children, grandchildren, all brothers and sisters, as well as any party who may have previously appeared in the conservatorship proceeding.


Your burden is to present to the court clear and convincing evidence of the conservatee's known wishes and intentions under the specific circumstances in which we find her today. Oral testimony of relatives, friends, neighbors and treating physicians is admissible on the subject, and their testimony as to the conservatee's prior statements about her wishes and intentions should clear the hearsay objection because such testimony is more in the nature of operative facts to establish the key issue, which is the conservatee's prior wishes and intentions and whether they should control present decision-making.  As to possible hearsay objections and the past state of mind exception, what has been said by the conservatee previously regarding her wishes also speaks to her intentions and instructions, I still think her prior statements in that regard are "outcome determinative," on a Petition for Instructions, and perhaps are not hearsay at all, but are operative fact.


If the court is convinced by extrinsic evidence that the conservatee clearly, unequivocally defined what she wanted and did not want, under circumstances identical or closely similar to those in which we find her today, then the court may allow the conservator to make the decision to not engage in medical intervention (and thus to issue a "do not resuscitate" order), or, if treatment began and is ongoing, to cease the medical interventions or use of devices employed presently (such as gastrostomy feeding or the use of a ventilator, or kidney dialysis, for example).


The Orange County Public Defender's Office, for example, when appointed as counsel, will vigorously investigate and insist upon a complete evidentiary hearing leading to a court order on facts such as those you present. They will insist upon you meeting the burden of proof by clear and convincing evidence presented by the conservator and her counsel to the court of the conservatee's clearly stated intentions under conditions identical or similar to those presently existing, and that the burden has been fully met.


A Deputy P.D. and this responder have had a couple of "knock down--drag out" cases on facts similar to the ones you present. I took those cases to hearing precisely because my client and I believed we had such evidence. The P.D. was not as convinced as I was, and he wound up on the fence, so we had to put on the case, and the judge ruled (in our favor). We had a holographic Will that stated the consevatee's intentions in her very own words. It was interpreted by the judge as clear and convincing directions to her executor of what to do and what not to do on end of life issues. The use of her own words was both descriptive and definitive of what she wanted done in her present medical circumstances. The stars lined up in the case. Not all cases will be that easy for a judge to resolve.


At least one Orange County Counsel disagrees regarding the authority given when the court grants Probate Code Section 2355 powers.  This individual believes the conservator then has the authority to order a "no code, do not resuscitate" order, and can refuse medical interventions, based on the conservator's good faith belief that this course of action is what the conservatee either said she wanted, or what is in the conservatee's best interests.


Put this position in the context of a private professional case manager, appointed as conservator by the court as a compromise due to family conflicts, or abuse, and who did not know the conservatee prior to appointment, and cannot personally attest to what the conservatee might want under any set of defined medical circumstances.  The question then posed might well be:  


"Did we appoint some stranger and grant her life and death decision-making authority, with no further hearing required, and with no notice to family members, and with no court affirmation of his intended decisions or what effect they are likely to have on the life of the conservatee, even when that effect is likely to be the end of her life?"


Welcome to a changing world, where the economics of care may soon trump all other considerations, but for the richest among us, as Medicare utilization review guidelines may now result in the denial of admission to acute care hospitals, upon a hospitalist's (gate keeper's) determination that "the patient is in the active process of dying, and there is nothing, medically, that can be done in this hospital to prevent it."  Typically followed by:  "We urge you to take her home with hospice care." 


We were warned this day might come, in "Brave New World,"  "1984" and "Soylent Green."  But so soon...?


Note that the court does not issue medical orders or decisions as to courses of treatment or cessation of treatment. The cases all indicate the courts merely allow or prohibit the conservator from taking a course of action, and from there on, it is up to the conservator. The court does not act as some "super conservator" in making medical decisions for conservatees.

                                                     _________________________________
                                                     John T. Anderson, Section Chair
                                                     Certified Specialist in Probate, Trust and Estate Planning
                                                     By the California State Bar Board of Legal Specialization

Copyright © 2012 by John T. Anderson

All articles by John T. Anderson may be copied for personal use, only. All articles or outlines from others may be used only with their personal authorization. Any approval is for personal use, only, and for non-commercial purposes.

File Location: C:\Users\John's LT\Documents\Work\Website\Articles for Website\Word Version of Articles From Lisa\2012.06.12 4 BLOG--LIFE SUPPORT DECISIONS IN THE SETTING OF A CONSERVATORSHIP.docx

Probate Notice - Specialist Credit

Probate, Trust and Estate Planning Tidbits.
by John T. Anderson, Chairman
Certified Specialist in Estate Planning, Trust
and Probate Law by the State Bar of California,
Board of Legal Specialization

Probate Notice

Specialist Credit

I have been informed by the Long Beach Bar Association that our Estate Planning, Trust, and Probate Law Section Brown Bag meetings have been approved for Specialist Credit in the area of Estate Planning.


From now on, attendees will have a two separate sign-in sheets and certificates, one for MCLE credit and one for Specialist Credit, at each qualifying meeting.


In addition, I am informed that our meetings for the past two years have been approved for retroactive Specialist Credit.  The method for obtaining proof should be available soon.  I will let you know as soon as I have more information.


Our next meeting is on Thursday, June 7, 2012 from noon to 1:00 PM in Department D-4 of the Long Beach Superior Court.  Our speaker will be Samuel D. Ingham, III, Esq. who will present “I’ve Got a Secret: Confidentiality and the PVP Attorney.”

                _________________________________
                John T. Anderson, Section Chair
                Certified Specialist in Probate, Trust and Estate Planning
                By the California State Bar Board of Legal Specialization

Upcoming Brown Bag Luncheon

Mark your calendar

Long Beach Bar Association Estate Planning, Probate & Trust Section Brown Bag Luncheon

When:       Thursday, June 7, 2012
                 Noon to 1:00 p.m.

Where:      Long Beach Superior Court
                 Dept. D-4 (Second Floor, across from elevator)

Topic:        “I’ve got a Secret: Confidentiality and the PVP Attorney”

Speaker:    Samuel D. Ingham, III, Esq.

MCLE:       1 hour credit