Konstantine “Kosta” Demiris to speak at NAELA Conference

On Saturday, March 4, 2017, Konstantine “Kosta” Demiris will speak at the National Academy of Elder Law Attorneys (“NAELA”) Chapter California Summit in Oakland, CA.  His topic will be “Drafting Trusts to Avoid Litigation.”

 

Some of the other topics and speakers include:

 

·         Ruth Phelps, who will be presenting, "Trust Protectors: Bodyguard or Bully?– an overview of when and how to utilize them.”

 

·         Kevin Urbatsch, who will be presenting, “Top Mistakes to Avoid When Drafting and Administering Special Needs Trusts.”

 

Other topics include: "How to get your client into a SNF", "Working Backwards: How to Avoid a Malpractice Claim", "Getting the Most Out of IHSS," and "What Effect will the New Administration have on Medicare and Medi-Cal."

 

Other speakers will include Kathleen Day-Seiter, Jim Hyuck, Kevin Prindiville and more.

Recent CA appellate case holds that all attorney-client confidential communications are presumed privileged

In a recent California 4th Appellate District case, DP Pham LLC v. C. Tucker Cheadle as administrator, etc., the Court of Appeals dealt with a matter involving attorney-client privilege.

The Court of Appeals made clear that “the attorney-client privilege is an absolute privilege that prevents disclosure, no matter how necessary or relevant to the lawsuit.”  The Appellate Court went on to determine that the privilege, as a matter of law, attaches to all confidential communications that exist between an attorney and a client no matter whether the information communicated is in fact privileged.   Accordingly, it is neither necessary nor appropriate to review a communication between a client and lawyer to determine whether the attorney-client privilege protects it.  The fact that a client and attorney engage in confidential communications makes the communications privileged. 

The Court of Appeals held that once a party makes a prima facie showing that a confidential communication was made between a client and attorney, then it is presumed the privilege applies.  The burden to the opponent to establish waiver, an exception, or that the privilege does not apply and the opponent cannot rely upon the content of the communication to prove its case.

Demiris & Moore successfully obtains ex parte suspension orders of conservator of husband and wife

On January 19, 2017, in Alameda County Superior Court Cases numbered RP 16803069 and RP 16803088 Konstantine “Kosta” Demiris of Demiris & Moore was able to obtain two ex parte suspension orders against a conservator of the person and estate of a husband and wife.  Kosta was able to get his client appointed as the temporary conservator of both the person and of the estate of the elderly couple pending the hearing on the removal petition and pending the hearing to appoint a permanent successor conservator.

 

California Probate Conservatorship Burden of Proof is Clear and Convincing Evidence

Under California law, the California Probate Code requires that prior to establishing a probate conservatorship of either one's person or estate that the proponent or petitioner must prove their case by clear and convincing evidence.  This legal standard is codified under Probate Code section 1801.  This is not to be confused with the LPS conservatorship standard of beyond a reasonable doubt.

The clear and convincing evidence standard is greater than a preponderance of the evidence standard and less than the beyond a reasonable doubt evidence standard.  In other words, this is not an "iffy" case situation.  A petitioner is required to have actual evidence necessitating a conservatorship of one's person or one's estate.  Such evidence must be clear and convincing.

Avoiding Probate Without a Trust in California

A simple and often under-utilized tool to avoid probate of a decedent's estate in California when a person does not want to use a trust is to do so by way of establishing transfer on death beneficiary designations for one's accounts and property.  California allows a transfer on death transfer for real property as well as bank accounts and various brokerage accounts.  This is an often under-utilized or ignored tool for many people.  However, as with everything, there are pros and cons.  To best understand those pros and cons a consumer should contact an attorney experienced in probate law.

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.