Konstantine “Kosta” Demiris to speak on topic of Financial Elder Abuse at MCLE Spectacular

Konstantine “Kosta” Demiris to speak on topic of Financial Elder Abuse at MCLE Spectacular

On Friday, November 18, 2016, Konstantine “Kosta” Demiris of Demiris & Moore will be speaking on the topic of financial elder abuse at the Contra Costa County Bar Association’s 2016 MCLE Spectacular.  The presentation is entitled FIGHTING FINANCIAL ELDER ABUSE: HOW TO GET IT DONE IN THE CRIMINAL AND CIVIL ARENAS

 The presentation will provide 2-hours of MCLE and will also include Kendra Crenshaw from Contra Costa County Adult Protective Services, Jill Henderson Deputy Contra Costa County District Attorney, Detective Jill Schwinn from the Danville Police Department with Ken McCormick of George, Schofield & McCormick LLP serving as the moderator.  The MCLE spectacular will take place at the Walnut Creek Marriot Hotel located in downtown Walnut Creek at 2355 N. Main Street.

The named representatives from the District Attorney's Office, Adult Protective Services, Law Enforcement and the Civil Litigation bar will show how to best prosecute a financial elder abuse case. Kosta looks forward to presenting with this dynamic panel as they explore key issues in prosecuting criminal and civil financial elder abuse cases as well as how such matters cross pollinate.

Telephonic Court Appearances - why do lawyers shy away from them?

In an article published in the February 2016 edition of the Contra Costa Lawyer magazine, civil litigation and elder law attorney Konstantine "Kosta" Demiris provides an analysis on telephonic court appearances.  The article provides insight into the legislative history behind promoting court call appearances, the factors lawyers consider in making such appearances, as well as the pros and cons of making such remote appearances.

You may read the entire article by clicking on the link below:

http://cclawyer.cccba.org/2016/02/telephonic-appearances-and-your-practice/

Can a No-contest Clause in a California Trust affect a separate Will, Power of Attorney, or group of contracts and deeds? The answer may shock you - YES it can.

 

                Many people believe that a “no contest clause” is limited to the legal instrument that it is written into.  For example, if there is a trust and that trust has a “no contest clause,” then a person may believe that only the trust is affected by the “no contest clause.”  In reality other instruments, such as a will, powers of attorney, or even contracts may be affected by the “no contest clause” in the trust – and vice versa, depending on the language of the "no contest clause" and the other instrument or classes of instruments identified.

                Under California Trust Law a “no contest clause” is defined as a provision in an otherwise valid legal instrument that, if enforced, would penalize a beneficiary for filing a pleading in any court.  California Law in this instance defines a “pleading” as a petition, complaint, cross-complaint, objection, answer, response, or claim.  A “protected instrument” is defined in CA Trust Law as either 1) an instrument that contains the “no contest clause” or 2) an instrument that is in existence on the date that the instrument containing the “no contest clause” is executed and is expressly identified in the “no contest clause,” either individually or as part of an identifiable class of instruments, as being governed by the “no contest clause.”  In other words, a “no contest clause” contained in a trust, could just affect the trust, but if it identifies a separate instrument (will, power of attorney, contract) in existence on the date the trust is created, then it could affect the other instrument(s).  If the “no contest clause” refers to an “identifiable class of instruments” such as “estate planning documents” or “contracts” or “deeds” then it could likely also affect those identifiable classes of legal instruments.

 

Konstantine "Kosta" Demiris to speak about Probate Law at CCCBA MCLE Event December 8, 2015

The Contra Costa County Barristers Section is sponsoring an

Introduction to Probate 101
Tuesday, December 8, 2015; 5:30 pm – 7:00 pm
 

The location for the event will be at the CCCBA Office's - 5th floor conference room
2300 Clayton Rd
Concord CA 94520

The event is being provided by Contra Costa County Bar Association ("CCCBA").

Konstantine "Kosta" Demiris from Demiris and Moore in Walnut Creek will be one of the featured speakers at the event along with Matthew B. Talbot.  Kosta Demiris is the President of the CCCBA Barristers Section and Member of the Elder Law Board.  Mr. Talbot is a board member of the Barristers Section.

The event is open to everyone include non-members of the Contra Costa County Bar Association.  See the link below for more information and to sign up.

http://www.cccba.org/attorney/calendar/event.php?id=7003

 

Konstantine “Kosta” Demiris obtains favorable decision for trustee/beneficiary in million dollar litigation involving claims of undue influence and breach of trust.

 

In re: the Cooper Living Trust;

Alameda County Superior Court Case No. RP 13699706

Date Decision Rendered: July 21, 2015

Date Decision Became Final: September 21, 2015

 

Summary

After nearly two years of litigation, Konstantine “Kosta” Demiris obtained a trial verdict denying the relief requested by Suzi and Joseph Cooper against his client, trustee/beneficiary Stefano Cooper to 1) invalidate the First Amendment to the Cooper Living Trust (“Trust”) as a result of alleged undue influence to return nearly $1 million in current assets and 2) for an additional $255,000 to be returned by Stefano as trustee for improper distributions and allocations.  The Court instead ordered that $66k – a fraction of the demand made - be returned to the subtrust that named the three siblings as equal beneficiaries.

 

Factual Background

Claim of Undue Influence to Invalidate Subtrust

In fall of 2013, Suzi Cooper and Joseph Cooper sued their brother Stefano Cooper on the 119th day after receiving a 120-day notification by trustee from him as required by law under Probate Code section 16061.7 concerning the Trust becoming irrevocable.  Of great import was the fact the Survivor’s subtrust portion of the trust (the mother’s portion) became irrevocable upon the mother’s death and changed the beneficiary designations from all siblings as equal beneficiaries to name Stefano as the 100% beneficiary.  This change occurred about a month before the mother of the beneficiaries and co-settlor of the Trust died.  She had been suffering from cancer.  The change resulted in about $750,000 of assets at date of allocation being allocated to Stefano instead of equally to the siblings as the trust had previously required.  The change also named Stefano as trustee of the subtrust, which previously named the siblings in succession and had no mention of Stefano as successor trustee.   By the trial date in summer of 2015, the subtrust assets had nearly doubled in value to $1.5 million.

 

Claim of Improper Distributions and Allocations of Trust Funds

Suzi and Joseph also sued their brother for improper distributions and allocations made by their mother 5-years after the date of their father’s 2008 death in 2013.  The assets consisted of real property appraised at around $750k and various accounts of about the same value for a total of about $1.5 million in 2008 and somewhat the same in 2013 (although the real property’s present value has skyrocketed with the housing bubble to nearly double).  The mother did not make allocations at date of death, but instead did so after hiring her attorney to change the Trust.  She allocated the home to her subtrust and the assets to the bypass trust.  She used the bypass trust’s liquid assets to pay for her health, education, support, and maintenance or (“HEMS”) needs during her life after her husband’s death, which lasted for about 5-years and resulted in about $255,000 being spent.  The mother (an Italian immigrant with a 3rd grade level of education, who was a housewife of a successful American and who had no idea about trust administrations) never accounted to the beneficiaries although she had a technical duty to render annual accountings for the bypass trust under the terms of the Trust.  Upon review of the allocations made it appeared about $133k was improperly allocated to one subtrust (Stefano), which required about $66.5k being returned to the other subtrust (all three siblings).

 

After substantial discovery involving subpoenas of medical records and financial records; written interrogatories, requests for admission, and for production of documents; and depositions of the estate planning attorney, the mother’s neighbors and friends; and perhaps most importantly - the depositions of the siblings - the claim for undue influence to invalidate the amendment to the Trust was affirmatively dismissed by the siblings.  However, the siblings continued in pursuit of the return of $255,000 to their subtrust arguing their mother failed to account for those funds and should be held liable through Stefano for her technical breach of trust and the matter went to trial.  Although a confidential mediated offer that was reasonable was made to the siblings and left open they refused to accept it.  Kosta Demiris notified opposing counsel that he believed, at most, the Court would award the siblings $66k, the actual number that appeared to be the difference in proper allocations under the Trust.  Konstantine Demiris communicated a simple cost-benefit analysis to the opposing parties, which showed that trial on such a matter made no sense and should be resolved informally, but the siblings were intent on “having their day in court.”

 

The Court, in its written trial decision denied the $255,000 claim and instead issued an order for the return of $66k to the bypass trust (Stefano is a 1/3 beneficiary of that subtrust) as a result of a technical miscalculation on the part of the mother in making the allocations – the expected decision - a fraction of the siblings’ demand. 


The decision became final on September 21, 2015 (September 19, 2015 is technically 60-days but falls on a Saturday sending the final date to the following Monday), 60-days after the Court’s order was issued and notice of the decision was sent to the parties.

Konstantine "Kosta" Demiris speaks at CCCBA Law Student Mixer at John F. Kennedy University College of Law

On August 20, 2015, Konstantine "Kosta" Demiris was invited by Eliza Gryko to speak at the Contra Costa County Bar Association ("CCCBA") Law Student Mixer at John F. Kennedy University College of Law in Pleasant Hill, CA.  Eliza Gryko is the co-section leader of the CCCBA's Student Section, in addition to being a registered nurse, professionally licensed California fiduciary, and 2016 JD candidate.

The topics discussed were networking and mentoring.  Kosta's speech focused on how networking and mentoring are necessary elements in the development of a lawyer.  He used real-life examples involving sports and, amongst other things, Steve Urkel and Laura Winslow.   Kosta discussed the need for law students who are aspiring lawyers to adapt to the legal world and reach out to fellow students, lawyers, and other professionals in all arenas.  He stressed the need to sacrifice and be willing to give, even when there doesn't appear to be any immediate reward in sight.  

Kosta's speech was part autobiographical, discussing his travails from working as a deputy county counsel and practicing an array of legal areas, to finding his niche and becoming a recognized member of the Contra Costa County legal community; a business partner of a Bay Area litigation firm handling will, trust, conservatorship and general civil litigation; and his service on various prestigious boards including the Elder Law Section, as President of the Barristers Section, and as a delegate representing the CCCBA in the Conference of California Bar Associations.

Kosta discussed his fortune to work along some of the great attorneys and Judges in Contra Costa County, well-respected members of the community, and hard-working people who have helped him by sharing something incredibly valuable and priceless - their own personal experiences.  Kosta's speech concluded with an acknowledgment of the wisdom of the famous Greek storyteller, fabulist, and slave, Aesop, who many revere today and hold in high esteem.  Kosta's speech followed that of Cole Peters, Esq., a personal injury and worker's compensation attorney who shared his personal experiences in transitioning from being a law student to a lawyer in private practice.

Conservatorships - Transfers from California to other States and from other States to California

Relatively new legislation allows for streamlined measures for a conservatorship that is established in California may be transferred to another state.  Likewise a conservatorship established in another state may be transferred to California. 

This is a result of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act ("UAGPPJA") being accepted as part of the California Conservatorship Jurisdiction Act ("CCJA").  This legislation is effective as of January 1, 2015 to conserved individuals who are to be moved to or from California after conservatorship proceedings have begun.  The CCJA applies as of January 1, 2016, to all new petitions to establish probate conservatorships such as conservatorship of the person, conservatorship of the estate, or both, for individuals who have moved to California within six months before proceedings are initiated.

The California Probate Code has codified these laws under Probate Code sections 2001-2003.  See the link attached:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=02001-03000&file=2001-2003

             Only a conservator appointed in California may petition the Court for transfer to another state.  All persons entitled to notice in California are required to be served notice.  A hearing is then held by the court to determine if transfer will likely be accepted by the other state.   There are three things that must also be found by the Court:

1)      The conserved person is physically present in the other state or reasonably expected to move permanently to the other state.

2)      No objection to the transfer has been made.  If an objection has been made then the Court must determine the transfer would not be contrary to the interests of the conserved person.

3)      Plans for care and services for the conserved person in the other state are “reasonable and sufficient.”

The Court can thereafter make a provisional order granting a petition to transfer proceedings to another state and direct the conservator to petition the other state to accept the conservatorship.

The Court will issue a final order confirming the transfer and terminating the conservatorship upon receiving both:

1)      A provisional order accepting the transfer of the proceeding from the Court in the other state by way of orders that are similar to the requirements in Probate Code section 2002.

2)      The documents required to terminate a conservatorship in California, including, but not limited to, any required accounting.

Konstantine “Kosta Demiris Obtains Court Order Finding Lost Holographic Will Valid in Estate Litigation Involving Will Contest by Sibling

Sacramento County Superior Court Case # 34-2013-00152632-PR-PW-FRC in re: the Estate of Barbara J. Heston

Walnut Creek estate lawyer and probate litigation lawyer Konstantine “Kosta” Demiris, represented Kevin Heston the executor named in Barbara J. Heston’s 1996 holographic will (the original holographic will was lost) in petition for probate of the lost holographic will.  Kevin’s brother, Paul Heston filed an objection to the validity of the will.  Paul contended that a 2010 typewritten will was the controlling will (or in legal parlance, the controlling “testamentary instrument”). 

Following extensive discovery and depositions that strongly established the 2010 typewritten will was not valid, Paul conceded the point (he waited until three-weeks before trial to do so).  Paul stipulated to the validity of the holographic will and admitted the 2010 will was invalid, which was made an order of the Court.  On January 5, 2015, Kevin was duly appointed by order of the Court as executor of his mother’s estate under the holographic will.  

Konstantine "Kosta" Demiris Successfully Obtains Court Order Invalidating Trust, Powers of Attorney, Advance Health Care Directive, and Monetary Settlement for Plaintiffs in Case Involving Elder Abuse

Sacramento County Superior Court Case #34-2013-00148491-PR-TR-FRC  Heston v. Heston/The matter of the Heston Trust

In this case, Walnut Creek trust lawyer and elder abuse litigation lawyer, Konstantine "Kosta" Demiris, represented the Plaintiffs, two of the surviving children of the deceased Barbara J. Heston, who filed suit against their brother Paul Heston and his wife Janet Heston.  After about two-years of elder abuse litigation, trust litigation, and litigation involving the purported durable power of attorney and advance health care directive of Barbara J. Heston, Plaintiffs prevailed by court order on July 15, 2015 invalidating the trust, general transfer of property to the trust, power of attorney, and advance health care directive, they also obtained a monetary settlement.

Factual Summary

Medical records and depositions of Barbara Heston’s treating physician and treating psychiatrist revealed that Barbara suffered from Alzheimer’s dementia, physiological changes to her brain, and was determined during the relevant periods before, during, and after execution of the purported trust and deed to real property to lack the required legal mental capacity to execute the legal documents and legal instruments.

The underlying civil complaint alleged elder abuse, including financial elder abuse, isolation, and abandonment.   In the trust petition, Plaintiffs petitioned the Court to invalidate Barbara J. Heston’s purported trust, general transfer of property to trust, and deed transfer of her home which disinherited her church, children, and all her grandchildren to give everything she owned to Paul.  The petitions to invalidate the probate power of attorney and advance health care directive alleged that the procurement of the power of attorney and advance health care directive were improper as Barbara lacked capacity and was unduly influenced to execute those instruments.

Konstantine "Kosta" Demiris Prevails on Will Dispute and Abatement

Konstantine “Kosta” Demiris from Demiris & Moore netted a victory for his client Margaret McGushin in a civil dispute involving a will contest over a New York Condo devised to her by her sister, Rose.  In the case of Estate of Rose G. McGushin, Plumas County Superior Court Case # GN PR13-00028, the Petitioner Andrew D. Smith, who was also the executor of the Decedent’s will, petitioned the Court to contest the express language in the will.  At issue were terms stating that a New York condominium was to be “passed on to Margaret” so long as she could manage “this responsibility” or if not Margaret then to Andrew Smith and if not Andrew, then to other named contingent beneficiaries. 

Andrew (Rose’s boyfriend) initially stated in writing that Margaret would inherit the property, then changed his mind and stated he would inherit the property because Margaret failed to manage the responsibility, then changed his mind again and petitioned as executor under the theory that the property should pass to no-one but rather by intestate succession claiming the language was vague and unenforceable.  (Ironically, this would still have the property go to Margaret, the sole surviving heir of Rose by way of intestacy).  The estate consisted of two real properties (one each to Andrew and Margaret) and sparse cash assets.  Andrew, who was provided another real property under the will, wished to escape paying the administrative costs of the estate because under the CA laws of abatement he would be responsible as a non-relative specific beneficiary for anything that the residue of the estate was unable to cover. 

Naturally, Margaret objected and claimed the language was clear and unambiguous; that Rose intended for the property to go to Margaret; and Andrew should pay for the costs of abatement.  The matter went to trial.  At trial, the Court upheld the language of the will as clear and unambiguous and held that the terms would be interpreted under their ordinary meaning under the Probate Code.  Andrew was held responsible for the costs of abatement as a non-relative with lower priority under the abatement statutes.