Haskett Law Firm

Financial Elder Abuse - Keading v. Keading

Fri, 10 Dec 2021 17:05:13 GMT

Financial elder abuse can result in heavy double damages against the perpetrator. In a new case, Keading v. Keading, the appeals court ruled that financial elder abusers can be held liable for double damages even absent a finding of bad faith by the trial court.

The defendant in Keading attempted to argue that the language of Probate Code Section 859, which concerns wrongful taking of property from elders and other vulnerable populations, requires a finding of bad faith. However, the court ruled that the clause regarding financial elder abuse is distinct from the other portions of the section that mention bad faith.

Therefore, any taking of an elder’s property via financial abuse makes the defendant liable for double the amount they illicitly took.

In the same case, the court of appeals elaborated on some of the evidentiary standards for proving financial elder abuse. As the court notes, plaintiffs alleging financial elder abuse often have to rely on circumstantial evidence and inferences to prove their case. Courts are directed to consider “(1) the victim’s vulnerability; (2) the influencer’s apparent authority; (3) the tactics used by the influencer; and (4) the inequity of the result” when making these determinations. Importantly, the court also holds that Estate of Sarabia, which lays out necessary conditions for a common-law presumption of undue influence to arise, has no import when a court is making a specific finding that undue influence and financial elder abuse actually occurred.

Therefore, the four statutory factors above are the most important in proving financial elder abuse.

Breslin v. Breslin

Sun, 21 Nov 2021 23:57:18 GMT

Breslin v. Breslin, a recent Court of Appeals case, makes clear the potential risks for beneficiaries or interested parties that choose to not participate in litigation.

In Breslin, the testator listed over twenty charities as beneficiaries of his trust, but it was not clear how the funds should be divided. The trustee filed a petition for instructions, which only a small fraction of the charities responded to. Subsequently, the trial court ordered mediation among all interested parties.

Notice was provided to all the charities and the intestate heirs, yet only five of the charity beneficiaries participated in mediation. The parties that did participate were successful in reaching a settlement and petitioned the court for approval. Only then did more charities show up in court, objecting to the proposed settlement agreement. The court approved the agreement, because the charities had been on notice since the original petition and failed to take any action until the matter was resolved.

The appellate court affirmed the trial court’s ruling. It held that by not participating earlier, the charities had given up any right to an evidentiary hearing or any other interest in the matter. Additionally, the court noted that the trustee did not violate his fiduciary duty to the non-responsive beneficiaries because they had all been noticed.

The Breslin decision is a welcome sign to trustees and administrators that have recalcitrant beneficiaries who seek to delay resolution of issues by stonewalling and refusal to negotiate.

Same-Sex Couples Should Seek Legal Counsel in Wake of DOMA Ruling

Tue, 02 Jul 2013 18:48:00 GMT

The Supreme Court just ruled that the Defense of Marriage Act (“DOMA”) is unconstitutional. That means that the federal government will acknowledge same sex marriages in the same manner in which the states do. In other words, because California is a state that now does acknowledge marriage between same sex partners, the federal government will acknowledge those marriages.

This acknowledgement will have a particularly big impact on estate planning and tax law. Married couples (regardless of gender) will be able to file joint federal tax returns, may avoid estate taxes through the marital exclusion, and will qualify for spousal benefits with Social Security and other federal programs.

It is essential for same sex couples to revisit their tax positions and their estate planning documents to determine if they are taking advantage of the laws that now apply to them. Because there are over 1,000 federal statutes in which marital status is an issue, estate planning and tax professionals are currently gathering additional information on how all couples can make sure they receive all the benefits to which they are entitled. For example, some tax professionals are now suggesting that same sex couples who were married under state law before 2013 may benefit from amending their federal income tax returns.

Importance of Beneficiary Designation

Tue, 04 Jun 2013 21:26:00 GMT

Estate planning is not just about wills, trusts and powers of attorney. Good estate planning involves an evaluation of your beneficiary designations for retirement accounts and insurance policies to ensure that there are no unintended results. The Virginia Supreme Court recently held that a Virginia law cannot override a federal employee’s decision to make his ex wife, not his current wife, his beneficiary in a federal insurance program.

The Decedent made his wife the beneficiary of his Federal Employees’ Group Life Insurance Policy before their divorce and his remarriage. He never changed his beneficiary designation after his divorce. Even though there is a Virginia law (similar to California law) that revokes a beneficiary designation to a former spouse in this situation, the Court held that the Virginla law revoking the beneficiary designation was pre-empted by the federal law stating that the named beneficiary got the money. Clearly the Decedent would have wanted to provide for his current spouse, but neglect of the beneficiary designated assets in his estate planning led to an unintended (and probably very unwanted) result.

91 Year Old Evicted By Own Daughter?

Fri, 17 May 2013 17:54:00 GMT

I recently saw a news story on the Internet. While all the readers may think this could not possibly happen to them, it can and does happen to elderly people every day. If you give someone a power of attorney, you must know and understand that you are giving someone the power to take everything you own – even if they do not have the right to take and keep your property. It is not up to the county employee at the Recorder’s office to make sure that a legally executed deed is actually a proper transfer.

The poor gentleman in the story sued to recover his home, and he was right that the home had to be returned to him because his daughter acted beyond the scope of her authority by giving his home to herself. However, unfortunately, he waited too long to sue to recover his home and the statute of limitations barred his claim. The moral of the story is that you must be very careful about giving a power of attorney to someone. Have your lawyer draft limits to the powers in the document so that your agent is not tempted to take something he or she should not. This kind of situation is where downloading a form document from the Internet can be a disaster.

Happy Birthday to the 27th Amendment!

Wed, 08 May 2013 21:47:00 GMT

Almost certainly only lawyers know what this amendment is about — ok, well maybe only law students! The 27th Amendment ensures that members of Congress can’t vote for their own pay raises and that any change in compensation they vote for does not take place until after the next election.

Interestingly, the 27th Amendment, which is the most recent addition to the Constitution, was actually among the amendments that James Madison proposed in 1789. Ten of those amendments were approved and became known as the Bill of Rights, but this one languished for another 203 years. Regardless of your political beliefs, it is hard to argue that it is a good idea to let anyone vote themselves a raise – particularly a group of people that have no single boss and cannot be fired (until their term ends or they are impeached). The 27 th Amendment protects us all as taxpayers.

Court Opinion Likely to Increase Trust & Estate Litigation

Mon, 01 Apr 2013 22:58:00 GMT

The California Court of Appeals has recognized a new tort cause of action in a decision that is likely to increase the amount of litigation related to trusts and estates. Heirs can now sue beneficiaries for “Intentional Interference with Expected Inheritance” in California. This is different from a Will Contest where an heir is contesting a Will and seeking action from the Probate Court. In this new cause of action, the plaintiff (heir) is seeking money damages personally from the defendant in litigation that does not impact the probate process.

In Beckwith v. Dahl (2012) 205 Cal. App. 4 th 1039, the Court applied the principals of the new tort to a same sex couple. Because under current California law same sex couples are not legally allowed to marry and had not registered as domestic partners, the Decedent’s partner was not protected by virtue of his status in an intestate estate. In order to establish a right to recovery, Plaintiff must show the following: (1) an expectation of receiving an inheritance; (2) intentional interference with that expectancy by a third party; (3) the interference was independently wrongful; (4) there was a reasonable certainty that but for the interference the plaintiff would have received the inheritance; and (5) damages. It is important to note that this claim can only be made once the party from whom the inheritance is expected has died.

Should You Expect Compensation as a Trustee?

Thu, 14 Mar 2013 22:13:00 GMT

Trustees are generally entitled to be compensated for the work they do in administering a Trust. Compensation is either the amount set forth in the Trust agreement, or it provides the Trustee with “reasonable compensation” if the Trust is silent on the issue. A new case decided by the Court of Appeals in 2012 establishes that the Probate Court cannot award compensation to a Trustee in an amount greater than established in the Trust agreement. See Thorpe v. Reed (2012) 211 Cal. App. 4th 1381.

This issue is important to understand. For estate planning clients, consider whether you want to limit or prohibit the payment of compensation to Trustees and how your decisions will impact the people are appointed to administer the Trust after your death.

Clients who are asked to act as a Trustee should review the terms of the trust and determine what their compensation might be before accepting the position. A trustee can always waive compensation if the job is easier than expected, but sometimes even the most generous person should be compensated for doing a job that requires a substantial number of hours of work. Finally, ask your attorney how “reasonable compensation” is calculated in your particular county.

Certain courts routinely deny fees that a Trustee would consider reasonable – particularly if detailed time and expense records are not kept. Generally, a Trustee will receive a fee of 1% of the value of the Trust, but this may not even begin to compensate the Trustee for the actual time spent on the job.

NPR Discusses Baby Boomers & Estate Planning Issues

Tue, 05 Mar 2013 21:38:00 GMT

The generation that came of age in the 1960s is beginning to retire. Born after World War II, they grew up in an era of rising living standards, but the Great Recession destroyed any sense of financial security. Now they face challenges, including putting their kids through college and caring for their parents. Is this […]

Estate Planning & Your Child

Sun, 02 Dec 2012 08:08:00 GMT

Everyone considers their children to be their top priority. People make tremendous sacrifices in their everyday lives just for the benefit of their children. Unfortunately, parents often don’t think about what will happen to their children if they are gone. The reality of life is that parents do not always live to see their child […]

What Happens to Your Minor Child if You Die without a Will?

Fri, 02 Nov 2012 07:12:00 GMT

If you don’t have a will, the court will chose someone to care for your child. The person chosen by the court could be someone you would never consider to be the best person to raise your child – your mother-in-law or your estranged sibling. A will is the only way to choose who will […]

Who Controls My Child’s Inheritance if I Die without a Plan?

Tue, 02 Oct 2012 07:13:00 GMT

If you don’t express your wishes in a will or trust, the court decides who controls your child’s inheritance. Generally, the court chooses a professional and takes his or her fees from the estate. Guardians need attorneys to help them comply with the numerous court-ordered requirements, and those fees come out of the estate as […]

What Can I Do To Protect My Child?

Sun, 02 Sep 2012 07:16:00 GMT

Get a complete estate plan with a will and a trust. A trust allows you to control the time and manner of distribution of funds to your children. It also allows you to provide for many of the contingencies that may arise as your child grows up. Your child may have special health or educational […]

What if I am a Single Parent?

Sun, 02 Sep 2012 07:15:00 GMT

According to the US Census Bureau, 25% of children under age 18 live with one parent. This is a risky situation, as the premature death of that parent puts an end to the family. In a single parent situation, it is particularly crucial to have a will naming a guardian of your child’s person and […]