Recent California Court of Appeals Decision holds that Probate Conservatorship does not require an individual to personally waive right to jury trial when represented by counsel

In the case of the conservatorship of the person of B.C. (Ventura County), the 2nd District Court of Appeals determined that it was harmless error when the judge failed to advise the individual subject to the conservatorship proceedings of her right to a jury trial because the individual was represented by counsel.  The Court also distinguished Probate Conservatorships from LPS Conservatorships.  The Court stated that unlike LPS conservatorships where involuntary confinement can occur; Probate Conservatorships are different in that regard.  Furthermore, the Court of Appeals stated that a citation was issued and served on the individual subject to the conservatorship proceedings advising her of her right to a jury trial.  The Court of Appeals found that the individual did not contest that the citation was not properly issued or served.  In fact, the individual responded to it by filing opposition papers.  The Court of Appeals concluded that probate conservatorship proceedings are conducted under the law and procedure relating to civil actions, and, that such include trial by jury if demanded by the proposed conservatee.  The Court of Appeals found that neither the individual subject to the proceedings nor her appointed counsel demanded a jury.

 

 

Contesting a Will in California - Limited Opportunity to Contest the Validity of a Will

Estate litigation and inheritance disputes in California often involve will disputes, contests of a will being deemed admitted to probate, and revocation of a will after it is admitted to probate.  In California, a person with standing to contest a will or object to the will being deemed admitted to probate is provided a limited opportunity to contest a will and/or object to it being admitted to probate.  A person with standing who is noticed of the probate of a will in California may contest the will on limited grounds.  Those are outlined in Probate Code sections 8004 and 8250.  The procedural requirements are also very specific.  A contestant is required by law to obtain a summons that is issued and served with a copy of the objection to probate of the will and also with a notice of hearing of the a petition to for administration of the decedent's estate.  The notice requirements for doing so are statutory.

Thereafter, if the contestant or objector loses or fails to win in preventing the will from being deemed admitted to probate then that party is not entitled to contest the will after it has been deemed admitted to probate.  Under Probate Code section 8270(a) any interested person other than a party to a will contest and other than a person who had actual notice of a will contest in time to have joined the contest may petition to revoke the probate of the will.

In other words, in such will disputes, if a person is properly noticed of a petition to probate a will then that person is limited to statutory timelines and laws in contesting the will.  If that party loses the contest they are barred from later petitioning to revoke the probate of the will after it has been deemed admitted to probate.

If you have questions about your rights or those of a loved one or friend concerning an inheritance dispute or contest, then you should immediately contact a licensed attorney to advise you.  

Trump's Proposal - Repeal of the estate tax

 

A recent New York Times article cited to president elect Donald J. Trump's campaign proposal to repeal the estate tax - what is referred to by some as the "death tax."  The article can be read in full by clicking below:

http://www.nytimes.com/2016/11/12/your-money/trump-changes-tax-codes-may-encourage-dynastic-wealth.html?_r=0

Interestingly enough, as the article points out, the existing estate tax only affects about 1% of the population - in other words 99% of the population is exempt under the existing format.  Nonetheless, a repeal of the estate tax could likely lead to promoting "dynastic" wealth by allowing generations to inherit large sums free of tax consequences (at least on the federal level - some states have "inheritance" taxes).  

If you are a person with an existing estate plan or one who is interested in estate planning, then it is a good idea to talk to your estate planning attorney and CPA about the pros and cons of the Trump plan and how implementation of a repeal could affect you and your family.

 

Forbes reports IRS Announcement of 2017 Estate and Gift Tax Limits

On October 25, 2016, Forbes online reported some helpful information for estate planners.  Forbes reported that the IRS had announced the estate and gift tax maximum exemption limits for 2017.  The article is below:

http://www.forbes.com/sites/ashleaebeling/2016/10/25/irs-announces-2017-estate-and-gift-tax-limits-the-11-million-tax-break/#3aec4aad43fa

For 2017, the annual gift tax exclusion applies to the first $14,000 gifted per person.  Beyond that, the lifetime exemption amount for federal estate taxes and federal gift taxes bumped up to $5.49 million per person compared to $5.45 million in 2016.

Walters v. Boosinger - statute of limitations on quiet title; joint tenancy not severed merely by filing suit

Walters v. Boosinger

Two key issues:  There is a statute of limitations on quiet title claims; and joint tenancy doesn’t get severed merely by filing a lawsuit.

In this case a girlfriend and boyfriend Valerie Boosinger and Randy Walters owned real property together.  A 2003 deed named Boosinger and Walters as joint tenants to the real property.  In April of 2013, Walters sued Boosinger alleging he was 2/3 owner and asking to buy-out Boosinger’s share of the property or for a court ordered partition.  Thereafter, Walters died.  

Walters’s son substituted in and continued the suit as administrator of his father’s estate, but Boosinger argued that the joint tenancy ended as a matter of law at the death of Walters and that Boosinger therefore owned 100% of the real property.  Boosinger demurred at the trial court level and won arguing that Walters had no standing (post-death) to bring forth a partition claim.   The court granted Walters’s son leave to file an amended complaint and he did. 

Walters’s son’s first amended complaint brought forth claims for quiet title and partition.  In his complaint he acknowledged that the 2003 deed grants ownership of the Property from "[Randy], an Unmarried Man as to an undivided 2/3 interest, and [Boosinger], a Single Woman as to an Undivided 1/3 interest as tenants in common," to "[Randy], an Unmarried Man and [Boosinger], a Single Woman as Joint Tenants." (Italics added.)

Even with such language in the deed Walters’s son argued the real property was not held in joint tenancy.  He contended, amongst other things, that his dad never intended to create a joint tenancy.

In the alternative, Walters’s son alleged even if there was a joint tenancy it was severed upon Walters filing suit and Boosinger’s filing an answer.

Another demurer was filed by Boosinger alleging the statute of limitations as a defense under the premise that the underlying quiet action was premised on fraud and the applicable time period passed since the date of the act to the date of the suit.

On appeal the trial court ruling was sustained the lower court’s ruling.  The Court of Appeals held there was a statute of limitations regarding the contention that the deed was invalid on its face.    The Court of Appeals also held that the quiet title claim was not valid in so far as it alleged the joint tenancy was severed by way of the lawsuit and answer.

 

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.

Joe Roth – a great person

For those of you who stumble upon this blog, I am going to do something different.  I’m not going to write about myself or my firm (at least not directly :)).  I am going to share a non-legal story (the best I can) that transcends the law and focuses on an individual’s journey and courage in life.  Consider this the once every three-years, non-legal, freelance blog post.  Hopefully it has the lasting positive effect on you that it did on me.

                A few weekends ago, while flipping through channels watching football games, I landed on KQED (I’m not ashamed to admit I watch KQED :))  I love watching the Rick Steves’s travel shows and check please! to find great places to eat out in the Bay Area).  On that day in particular, there was a sports story, so that caught my attention.  Then I found out it was about CAL sports, so my interest grew.  Then I found out it was about CAL football, so I had to watch to see what it was all about.  What I was surprised to learn about was the story of Joe Roth, which I regrettably had never really known about even though I should have known about it (and I wish Cal mandated watching his documentary as a condition to my entry to the great school).

                Joe was a former Cal quarterback from 1975-77, before I was even born.  Like me he transferred to Cal from a junior college and was a member of the Cal football team for a moment in time.  Unlike me, he was a Heisman caliber quarterback and true college star athlete.  He overcame melanoma at 19 only to find out just two-years later that he had a spot in his lungs during an x-ray examination.  It later was discovered that cancer that had spread throughout much of his body and he was given a 90-days to live prognosis.  The documentary recaps how he spent most of his final season “struggling” on the playing field, noticeably “off his game,” and people were wondering “what is wrong with this guy?”  He persevered as much as he could, and did not tell his teammates what was “wrong.”  It was not until late in the progression of his cancer that it was made public – even then Joe’s attitude was positive and he insisted on spending his final days at Cal and doing coursework.  His courageous story is now detailed in a documentary by the people who witnessed it firsthand – many of them great sports figures in their own rights: Jack Clark – Cal Rugby coach/legend; Tony Dungy – Pro football coaching legend; Mike White former Cal and Raider coach and, you guessed it, Bay Area sports legend.  Joe Roth’s wonderful family helped to share his story and live through the beautiful struggle.   You can see a link below for more on his story:

http://www.joerothfilm.com/

                What is absolutely breathtaking about his story to me is that although he was a star athlete, good looking, and an overall fun person everyone who seemed to come across him – from an adversarial standpoint – stated they felt drawn to his kindness and blessed to know him.  He didn’t draw attention to himself.  He tried to be an “ordinary Joe.”  While he could have taken it out on others he never did, which made me think - how many people do I know who are like Joe?  And I answered – not many.  After watching the documentary, I felt blessed to learn about a small piece of him.  That was after filling up a basket of Kleenex tissues.  I can say I’ve never felt more proud to be a Cal bear.

According to the documentary, he treated everyone with respect, was kind, and had a great almost constant smile.  He also was a highly motivated, competitive person, who was never guaranteed anything and never complained.  He worked.  He struggled.  He had a smile.  Unreal.  An example in the documentary shows that even after the fatal diagnosis, he kept playing football and never tried to draw any attention to himself.  When asked by a USC coach visiting him in the hospital how he was doing, he would reply in a positive manner and then asked the coach why he wasn’t out recruiting – in other words always thinking of others and had a great sense of humor.  He is remembered by many as someone who put others first, ahead of himself, even as he was dying.  Wow.

                The story of Joe Roth is a great one.  Those who grew up in the bay area at that time and Cal football fans likely remember him and were touched by him and his story.  I hope this story brings whoever reads it strength, courage, and positivity.  

A conservator cannot move a conservatee out of state without a court order

In California, a conservator cannot just move a conservatee out of the state without a court order authorizing the move.

Under Probate Code section 2352, the rules governing a conservatee's change of residence are stated. Probate Code section 2352(c) requires permission of the court to establish a conservatee's residence out of California.  A formal petition with notice of hearing is required to all persons who are legally entitled to notice.

Probate Code section 2352(d) states that an order under subdivision (c) requires the conservator to either return the conservatee to California or to cause a conservatorship (or its equivalent) to be commenced in the place of the new residence, when the conservatee has resided in the place of the new residence for a period of four months or a longer/shorter period of time specified in the order.

So in other words, before a conservator decides to move a conservatee out of the state or out of the country, they will need to consult with and comply with Probate Code section 2352 at minimum.

Konstantine "Kosta" Demiris speaks to Eastern Alameda County Bar Association about Financial Elder Abuse

Recently, on September 15, 2016, attorney Konstantine "Kosta" Demiris, spoke to the members of the Eastern Alameda County Bar Association.  The presentation provided MCLE to the attorneys present and covered legal topics focusing on financial elder abuse and elder law.  Two case studies were provided from litigation cases tried by Kosta Demiris as well as an outline of cases and statutory law involving financial elder abuse litigation

A copy of the presentation description is below.

EACBA 3rd Thursday MCLE Luncheon
Thursday, September 15th, 2016

          Program presented by Konstantine "Kosta" Demiris of Demiris & Moore

Thursday, September 15th 12:00pm-1:30pm
(program begins at 12:30-1:30)
Handles Gastropub - 855 Main St., Pleasanton
$35 EACBA members/$50 non-members/$30 for staff

Probate Code section 859 double damages may be punitive in nature but are not "punitive damages"

In the recent case of Hill v. Superior Court, the Court of Appeals held that the Probate Code section 859 provision that authorizes courts to award double damages are not punitive or exemplary damages as the term is defined by Code of Civil Procedure section 3294.   That Code of Civil Procedure section is a section that makes exceptions to awards against a decedent's successor-in-interest.  The Court of Appeal pointed out that each side had only one case on point to argue in support of each side's respective position.  The parties involved a petition by children who were co-executors against their stepfather for Probate Code section 859 damages.  They were arguing that the stepfather wrongfully and in bad faith concealed assets belonging to the decedent's estate.  The stepfather argued that CCP 3294 is an exception that bars double damages as "punitive damages."  At the trial court level the stepfather prevailed on his argument, but was overturned on appeal as the double damages were determined not to be "punitive damages."

For those who are not probate law practitioners, under Probate Code section 859, if a person dies and that person's executor, trustee, beneficiary, or heir was to wrongfully and in bad-faith take or conceal money from the person who died (or was to take or conceal money from that person's trust or estate), then Probate Code section 859 allows for a potential award of double damages, attorney's fees and costs.  This ruling made the distinction that such double damages could possibly be punitive in nature or may have a punitive effect but they are not "punitive damages" and thus do not fall within the CCP 3294 exception.  A full copy of the Court of Appeal decisions can be found by clicking on the link below:

http://scocal.stanford.edu/opinion/hill-v-superior-court-27801