Getting counsel

I primarily represent the fiduciary in my trust and probate cases. That is I represent the trustee, executor, administrator or personal representative. That is, the person who has been in-trusted to gather assets, determine liabilities, deal with taxes and eventually distribute the assets. However, there are some cases when I represent a beneficiary.

In most of these representations I am just monitoring the proceedings to make sure the fiduciary does what they are supposed to do, answer questions, be the middle man to communicate with the other attorney and give my client peace of mind that they are being treated fairly. A lot of times the attorney for the fiduciary will not discuss matters with a beneficiary. Since they only represent the fiduciary they feel they can’t talk to you. In my opinion some of these attorneys take this to the extreme and just won’t communicate with a beneficiary who is not represented.

In my opinion though the attorney represents the fiduciary they can share general information.  They also can share documents that have been filed with the Court. A lot of times just that little bit of information will make a beneficiary feel better. However, when the attorney won’t take their call, won’t return calls or just says, “I can’t talk to you I represent the trustee,” they are creating potential conflict. It’s too bad because it’s avoidable!

People just want to know they are being treated fairly. In most cases they are being treated fairly but without counsel it’s hard to know.  When you are in the dark it’s hard to know.  When you have an attorney on YOUR SIDE you can sleep better as you will be in the light!  I enjoy representing beneficiaries as I know what to look for and know what the other attorney and the fiduciary should be doing. If they aren’t doing it I let them know!

Likewise I have a case right now where I represent the Executor in a probate case.  The family is not sophisticated and one of the heirs at law is not only unsophisticated but also a hot head. The combination is bad. Since she doesn’t understand what is going on she just objects.  I have tried to help her as best I can since I don’t represent her. However, she is not taking my help since she doesn’t understand it. She keeps saying she will get her own attorney and my client thinks this is some big threat. I keep saying, “great, I hope she gets an attorney.”  If I had an educated probate attorney to talk to this case would be nearing the end and everybody could get their money and move on with life. Instead I got an uneducated hot head questioning everything and creating problems for everybody. As an attorney this is quite frustrating!  I keep hoping she will find a knowledgeable probate attorney to represent her.

In most cases the beneficairies probably don’t need their own attorney but there is nothing wrong with it. I know I advise my fiduciary clients to do things properly so I have no problem with someone looking over my shoulder and keeping an eye on things.

If you are a beneficiary of an estate and want beneficiary representation contact me. I would be happy to hear about your case and see if I can help. If I already represent the fiduciary in your case then nobody in my firm can represent you but I certainly encourage you to get your own counsel.

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California Pet Trusts

In the probate world we like to say if there’s a question the answer is in the California Probate Code. However, this wouldn’t apply to people leaving money to their pets, right!?  That only happens in the movies, right!?  Well, guess what… California Probate Code section 15212 covers PET TRUSTS.

Come on, we are California, remember!?  We do everything in a progressive manner!  Probate Code section 15212 in part (a) provides, “(a)  Subject to the requirements of this section, a trust for the care of an animal is a trust for a lawful noncharitable purpose. Unless expressly provided in the trust, the trust terminates when no animal living on the date of the settlor’s death remains alive. The governing instrument of the animal trust shall be liberally construed to bring the trust within this section, to presume against the merely precatory or honorary nature of the disposition, and to carry out the general intent of the settlor.  Extrinsic evidence is admissible in determining the settlor’s intent.”

Not only is there a law but it’s to be liberally construed to create these pet trusts. In fact, pet trusts are pretty simple. They basically provide that the money is to be used for the pet(s) until all pets, alive at the date of death of the decedent, are deceased. Also, it only applies to household pets but you could probably take that definition pretty far. After the last pet dies the money is to be distributed as provided for in the trust instrument. That is, the document might say “I leave $25,000 in trust for my pet snake, Jake, and at Jake’s death whatever is left shall go to brother Bob who is a used car salesman… that snake.”

Ok, I ad libed a little but you get the point. You also would want to name a trustee to manage the money. This should be a trustworthy person!

I know what you are thinking… “do I really need a trust to leave a few bucks so my friend can take care of my dog?”  Of course not!  You can just give your trusted friend a gift in your trust, at death, and mention in the document that you hope they will take care of your pet with the money.  We often write something like, “I give my friend Jack my pets at my death along with $5,000 to care for them if I have pets at my death.”  However, it’s precatory(or “optional”) language so make sure the friend is trusted.

In my experience a pet trust is applicable for cases with pets that will live a really long time (I think birds and turtles can live 50+ years), where there is a lot of money, or where you want to leave a house for the pet to live in. Oh yes people really do that!  You also could set one for while you are alive to take effect when you move to a nursing home and Fido, your great dane, can’t go with you!

In the end make sure your attorney is a qualified estate planning attorney. They should be familiar with the probate code for pet trusts and can set up a document that takes care of your pet when you are no longer here to do so yourself!

Call me with questions!  -John

Probate/Trust Mediation

Your attorney has recommend you go to mediation to settle the dispute with your brother related to your mom or dad’s death.  Or maybe the probate Judge has ordered you to go to mediation before they will hear your case any more in Court.  Will mediation help you settle your dispute?  In this attorney’s opinion mediation will resolve most situations… but sadly not all. The reason many probate and trust disputes end up in Court is because tensions run very high after a parent’s death. Sibling rivalry issues from 65 years ago may come back to life. Issues related to the caretaking of one’s parents in their elder years may come up after death. In general, people just don’t act completely rationale when they lose a parent… AND then the other issue that clouds many people’s minds… MONEY.  Death and money combine to be a wicked force!

People end up in Court, and/or facing mediation, when they have a dispute which the two sides can not agree on a fair resolution of.  Maybe one person thinks they should get $250,000 of mom’s estate and the other person (usually their sibling) thinks that number is closer to $10,000… or zero! What’s right?  Well, most likely both sides have merit. Most likely the attorneys for each sibling have told them the good and bad to their case. Often a mediator can come in and solve the dilemna. 

Let me first clear up a common misconception that the mediator comes in, says “let’s split it down the middle,” and you walk out 25 minutes later. No.  Mediation often takes all day or, in rare cases, multiple days.  In reality the mediator will generally listen to both sides present their case in a room (often a meeting room at a law firm).  Then the mediator might meet with each side alone to give their opinion of the good and bad of their case.  Yes, the mediator works hard to get a resolution but they can not force you to settle and the mediator does not make a “decision” like a Judge that is binding. A mediator trys to get both sides to see the light, agree and end the lawsuit!

A mediator is usually another attorney who practices in the area of estate and probate law (assuming your mediation is in this area of law of course). In some cases a retired Judge is used. In any event the person is an intelligent and level headed individual with knowledge of probate and trust law.  Mediators are typically paid by the hour and will bill for prep time for the mediation, travel time to the mediation, the mediation itself and any follow up work. They typically charge fees like most lawyers do; maybe $200 – $400 per hour as an estimate.

Let me clearly state a mediation is not Court.  However, you can generally get your case to mediation substantially faster than you can get to Court. Thus many people prefer mediation. Also, mediation tends to be substantially cheaper in attorney fees and I mean $UB-$TAN-TI-A-LLY!

So, let’s back up. Before the mediation your attorney will prepare a mediation brief outlining the case in their view. The other attorney will, likewise, prepare a brief showing their view. Often there is some overlap where the parties agree and then a lot of areas with no overlap.   Focusing on the issues with overlap is first to confirm the common ground. Then the mediator will delve into the dark side and try to resolve the OTHER issues!

The mediator will often put one person, and their attorney in one room, and the other in another room. The mediator will then go back and forth between the two rooms trying to narrow downthe differences and come up with common ground for a settlement.

If both parties agree the mediator might call them into the same room for a meeting to confirm the details. Then the attorneys, and the mediator, will walk over to a computer and start typing out a settlement document. The people do not leave until the settlement is reviewed and SIGNED!

In my experience mediation is a fabulous way to resolve disputes in the trust and estates arena. I encourage you to look into mediation to settle your disputes. If you need an attorney call me. If you need a probate and trust mediator call my associate, AMY RUGGLES, who has the training, patience and knowledge to help you!