Probate and Trust Administration

• Unethical tactics to collect debt from probate estate
  Feb 09, 2009

  This Motley Fool article tells the tale a devoted son who met with unscrupulous tactics from a large bank when he informed the bank his mother was dead.  The bank wanted to know who would take care of his mother's outstanding credit card balance.  He told the bank no one because she was dead.  When they pressed him he told the bank they could try the normal probate procedure.  From there the bank's  representative tried to shame him into paying the outstanding balance on his mother's credit card.
  
  California probate law has a creditors claim procedure that can be very useful when there are large outstanding debts.  During probate, creditors can file claims with the probate estate and in the probate court for whatever amount they claim they are owed.  The executor can approve the claim, deny the claim, or approve it in part and deny it in part.  This can give the executor great leverage to negotiate with creditors because any claim that is denied requires the creditor to file a civil lawsuit if they want to collect the debt.
  
  In a recent Riverside probate I advised an executor to offer all the creditors of the probate estate nine cents on the dollar to settle their debts.  Every creditor accepted the offer because we were able to show the probate estate had very little money and huge debts.  The creditors, including three different credit card companies, knew they were better to take something from the probate estate than to pursue uneconomic litigation in the civil court  - 21 - 30

• Indio Probate Court is now the Palm Springs Probate Court
  Feb 08, 2009

  The Indio, California probate court has been relocated to Palm Springs, California.  All probate filings whether for probate, trust administration, will contests, probate litigation or trust litigation must still me at the Riverside County Superior Court in Indio due to construction on the Palm Springs court building.  Even though probate and trust cases must be filed in Indio they will all be heard in the new Palm Springs probate department. - 22 - 30

• Connecticut probate courts may be consolidated
  Feb 06, 2009

  Unlike California's probate court system in which each county has only a small number of probate courts (sometimes just one probate court in a county), Connecticut's probate court system is highly dispersed through that small state.  It now appears that probate court system is about to undergo massive changes to make it more efficient. - 23 - 30

Will Contests and Trust Litigation

• Dodger owners' divorce trial could have been a probate battle
  Sep 02, 2010

  The high profile battle between Frank and Jamie McCourt for ownership of the Dodgers could easily have been a probate battle.  Had either one of them died then the decedent's children would have been in probate court asserting their parent owned the team as their separate property or they owned it jointly as community property.  Think that's far fetched?  Think again.  The number of divorces and remarriages during the last 30 years has lead to a large number of blended families.
  
  Often times the couple hasn't paid close attention to how they have taken, or changed, title to the property they own.  When that happens hard feelings can arise when one of the spouses dies.  So often the survivor claims it was community property so half of it is theirs while the children of the decedent claim it was their parent's separate property so the survivor gets nothing.
  
  Couples with larger estates may have signed deeds changing the character of their real estate or beneficiary designations affecting IRAs and other deferred compensation plans.  Sorting it out after death is just as complicated as doing divorce while they are both alive. - 24 - 30

• Probate litigation no stranger to gay couples
  Apr 25, 2010

  This case from the Milwaukee area is a typical case of one gay partner's parents being unhappy with his will and challenging it.  The decedent ran a successful design company with his life partner.  His will left everything his partner when he died. 
  
  Unfortunately, his death came unexpectedly in an airplane crash.  For reasons not stated in the article, his parents did not accept his testimonial instruction and filed a will contest.  They claimed their son would care for them for the rest of their lives even though his will left everything to his partner.  They lost and have taken an appeal.
  
  The brief facts of the case illustrate the power of a will and the difficulty of overcoming it.  The parents appear to be asserting their son made oral promises that don't appear in his will.  If that is their entire claim it would not win in a California probate court.

  - 25 - 30

• Church battles parishioner over inheritance
  Aug 30, 2009

  A church and its parishioners are in a battle over an inheritance from a deceased parishioner.  The local archdiocese wants to demolish the church structure and still receive the inheritance.  Local parishioners argue the money left to the church is more than enough to repair the church and allow it to re-open.  The case highlights the importance of expressing testamentary intentions. - 26 - 30

• Heiress' inability to recognize son supports fraud charge
  Aug 27, 2009

  The criminal case against heiress Brook Astor's son was supported by the testimony of her long time chaffeur that the heiress didn't recognize her son on a number of occassions during the last few years of her life.  The prosecution introduced this testimony to support their fraud claim.
  
  In California will contest and trust litigation cases, evidence a parent does not recognize their child is often introduced to prove lack of capacity or undue influence.  California law presumes competence and part of that is recognizing your family.  The law assumes most people will leave their money and property to their children barring a child being estranged or another good reason for doing otherwise.  Failing to recognize your own son or daughter often explains why all the property was left to just one son or daughter or someone who is not part of the family. - 27 - 30

• Conflicting wills leads to charge of undue influence
  Jun 08, 2009

  Cape Cod artist Mary Kass left two wills created years apart.  The conflict in the terms of the wills lead to beneficiaries of the first will claiming undue influence in the creation of the second will. 
  
  Ms. Kass accumulated tens of millions of dollars worth of art.  She originally left a substantial portion of her estate to her niece and nephew through her will.  A later will left most of her estate to the National Gallery of Art and put her caregiver in charge of her estate along with a major brokerage house.  Her niece and nephew claim the second will was the product of the caregiver's undue influence.  No doubt the caregiver is in a position to earn large fees helping to probate this will. - 28 - 30

• Changes to will leads to criminal elder abuse case
  Jun 05, 2009

  Heiress Brooke Astor's attorney was called to testify in a criminal elder abuse case that sprang from multiple changes to her will when she was 101.  Astor's attorney was called as a prosecution witness but was questioned, at times, as though he were a hostile witness.  The prosecution contends he exhibited loyalty to both Mrs. Astor and her son.
  
  This can be a real source of tension for families with aging parents who are not as sharp or spry as they used to be.  A well intentioned attorney can come to rely on communications from an adult child and not realize the requests being made are the child's requests, not his or her client's request.  Such divided loyalties can result in charges of undue influence and lack of capacity if there is a will contest.  If the adult child "helping" his or her parent also received any property while the parent was alive then financial elder abuse charges, criminal or civil, can result.
  
  In this case, many millions of dollars were at stake which is why, I suspect, a criminal case was filed.  Had this case involved a family with a more modest estate then the other children would probably have had to bring a civil case if they were going to get the inheritance intended for them. - 29 - 30

• Helmsley's pet trust was poorly drafted
  Mar 18, 2009

  Billionaire Leona Helmsley created a trust that she thought would leave all her money in trust to be used solely for the care and welfare of her dogs.  Helmsley inexplicably drafted a "mission statement" for her trust and then failed to include any of it in the trust itself.  The mission statement provided instructions to her trustees on how her money should be used after her death.
  
  This fundamental omission allowed her trustee to file a motion with New York's version of probate court asking the court to allow them to use the trust funds for charitable purposes since the trust itself did not direct them how to use the trust assets.  The judge ruled the trustees may, in their sole discretion, determine for what charitable purposes the funds can be used. - 30 - 30